Termination due to AWOL, Tardiness or Abandonment

by | Jun 26, 2018 | Corporate Law, Labor Law

Empty chair in front of a desk with question marks signifying a missing employee

Missing employees can really cut down productivity

You’ve got an employee who’s frequently late and always absent on your hands, and are wondering if it’s possible to fire him under Philippine law.

It is. I’ll explain below how and under what circumstances you need to do this.

At the end of this post, you should have an idea of what the legal grounds, common definitions and needed processes are.

Overview

An HR holding a cellphone calling an employee on a green circle background

Try to contact your employee several times to be sure he has no intention of returning.

A common problem for Philippine HRs is when employees have timekeeping issues.

Frequent tardiness and absenteeism decrease productivity and seriously hamper operations.

These issues are grounds for termination under certain conditions and fall under section b, Art 297 (formerly 282) of the labor code.

(b) Gross and habitual neglect by the employee of his duties;

In these cases, it is important to build the case that the behavior is habitual.

You would also be well served by having good HR policies for timekeeping as well as following the twin notice rule for just cause termination.

  • Notice to Explain
  • Hearing where the employee may air his side
  • Notice of Termination

Always remember to speak to your company lawyer in case you have clarifications, and make sure that you have the correct documentation.

Termination due to Frequent Tardiness

A late employee being chased by a ringing clock

Frequent tardiness can be a big problem

If you have an employee who is frequently tardy, his manager might want to dismiss him.

There are Supreme Court cases in support of this.

One of the most blatant cases for tardiness and absenteeism happened in the case of a driver for a small printing business. [G.R. No. 168120, Jan 25, 2012]

The driver was late 19 times out of the 47 days that he reported for work and absent 19 days out of the 66 of the first quarter of 2000.

He was the only driver of the business and his tardiness and absenteeism delayed deliveries and the pick-up of supplies.

He was warned several times and even met with management to discuss his timekeeping issues.

He was eventually terminated and filed for illegal dismissal.

The Supreme Court classified his tardiness and absences as habitual and upheld his dismissal.

Note that the sole proprietorship in this case followed due process and did as much as they could to try to come to an agreement with him, but the employee was steadfastly adamant in his behavior.

Termination for Absenteeism

A hand bringing an employee out of the office, terminating his employement

Absenteeism is a cause for termination

If your employee has been absent only once, firing shouldn’t be your first option.

However, you might start considering termination if he’s been absent several times.

In Japos vs. FarmCoop [G.R. 208000, Jul 26, 2017], the Court upheld the termination as the employee had been absent on 6 different occasions and had been issued several written warnings.

Undelivered boxes on a blue background.

As the only driver, his absentism caused the company business

The Court favorably looked at the fact that the company had followed due process. It also quoted the company’s policy on absenteeism and the documentation that it presented on the employee’s record.

Termination for absenteeism is very clear in this case.

Make sure that you have a good employee policy in place, that your documentation is in order and that you are following due process.
With this, you’ll be easily able to explain your reasoning to your employee and best represent management.

Termination for Abandonment

An empty desk covered in cobwebs on a purple background

Abandonment occurs when an employee has no intention to return to work.

Abandonment and absence without leave (AWOL) can sometimes be confused with each other.

But they are different things and have different effects.

Absence without leave (AWOL) is when an employee is absent and has not followed internal company guidelines on leave.

AWOL is not abandonment, although it may lead to abandonment.

In the eyes of the law, abandonment must be composed of 2 instances for it to be claimed:

  • the failure to report for work or absence without valid or justifiable reason, and
  • a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. [R. 218384, Jul 3, 2017]

How do you prove the second requirement?

Well, in Agabon vs. NLRC [G.R. 158693, Nov 17, 2004] when the company requested 2 employees to return to work they did not because they were already working for another company.

Needless to say, their request for illegal dismissal was denied.

For abandonment to work as a ground, you’ll have to try to contact your employee several times and through several different mediums.

Keep a log of the times you’ve tried.

If these attempts are unsuccessful, you’ve clearly shown that the employee has no intention of returning to work and can substantiate that.

Process

An employee taking all things things away and leaving behind an empty desk

Go through the right process to terminate an employee

You will need to go through the due process outlined for just causes by the labor code.

For just causes, there is the twin notice rule:

  • Notice to Explain
  • Hearing where the employee may air his side
  • Notice of Termination

The process is pretty clearly laid out in the 2018 Guide to Terminating Regularized Employees for the Philippine HR and can be referred to for clarification.

Remember to always consult your company lawyer when you consider termination so that you are properly guided in more complex cases.

34 Comments

  1. H K Lim

    wont DTR b sufficient engh to proof frequency of lates n absences?
    may i knw how many times b consider frequent in a month.
    btw can we terminate non performing n lazy employees. how to proof n substantiate nonperformance. tnx

    Reply
    • Lawyers in the Philippines

      To terminate late or absent employees, you will first have to show enough proof that the behavior is habitual.

      The court has not defined the exact number of times for an action to be habitual so it is best to err on the side of caution. For instance, termination should not be considered if it has only been one or two times.

      It is also best to ensure that you have followed the due process requirements I outlined in the post.

      Reply
  2. Tony

    Can employer terminate the employee while rendering?

    Reply
    • Lawyers in the Philippines

      Hi:

      I am not certain what the question actually is.

      The employer can terminate an employee for many reasons, one of them being tardiness/absenteeism.

      Reply
  3. Nel

    How many absences, tardiness, abandonment are needed before to terminate a worker?

    Reply
    • Lawyers in the Philippines

      I previously mentioned this in response to another comment, but I will recap here.

      The court has not defined the number of times that is needed to terminate for absenteeism or tardiness. To terminate for this reason, you will first have to show enough proof that the behavior is habitual.

      Please also remember to follow due process.

      Reply
  4. Horace

    Can an employer provide a sanction to a previously sick employee who presents a valid medical certificate / fit to work clearance from a doctor upon return to work?

    Reply
    • Lawyers in the Philippines

      Hi Horace:

      This is a very broad question.

      A lot depends on the exact situation and facts. It would have to be very clear and consultation would be needed to provide a useful answer since the circumstances will dictate the advice.

      Reply
  5. Raymund

    Is there any sanction to the employee, that he /she absent today then he / she will work on his / her Rest Day but did not inform the HR or the Manager
    because the employee do this several times.

    Reply
    • Lawyers in the Philippines

      If the employee habitually changes his schedule without informing HR, then she/he should be reprimanded as per the company’s internal guidelines.

      If other sanctions are being contemplated, then due process should be followed with well documented proof.

      Reply
  6. Maria

    Hi. Can we out rightly terminate an employee who is under probation for being AWOL (happened once and for 3 consecutive days)? And for not being able to meet company’s expectation of him/her?

    Reply
    • Lawyers in the Philippines

      Hi:

      A probationary employee can be terminated if he is not able to meet the company’s expectations and standards. These should be communicated to him and explained.

      AWOL instances can be also brought up during the explanation of why he is not to be regularized.

      Reply
  7. jay lim

    hi, I would like to get your opinion when it comes to policies on tardiness? an employee needs to inform immediate superior for late/absences , should it be? 1. not later than the first 2 hours of shift or 2. 2 hours before the shift? Thank you.

    Reply
    • Lawyers in the Philippines

      Hi Jay Lim:

      In Labor Law, the government recognizes the right of management to direct and regulate their employees’ work. This is called management perogative.

      Essentially, this means that the company sets internal rules and procedures that must be followed within the framework on Philippine labor law.

      This is applicable in your case.

      Reply
  8. JM

    Hi,

    Would an employee be considered AWOL and is it a ground for suspension if at 3:00pm he asks for approval from his superior that he will leave early at 4:00pm but did not receive a reply from the superior? He did not leave work at 4 but instead leave office at 5:00pm. He did come back for work the day after though. Thank you

    Reply
    • Lawyers in the Philippines

      Hi JM:

      Please clarify the situation. I am not sure what the concern is.

      Reply
  9. cesar

    can we terminate or suspend an employee due abandoning his work,, he did not return to work after lunch break without informing any of the personnel in the admin or even with his co employee.. thank you

    Reply
  10. ann

    Hi. Do we need to issue a memo on the employee for his tardiness before we can proceed to asking a notice to explain?

    Reply
    • Lawyers in the Philippines

      Hi:

      You can incorporate that memo into the notice to explain. Give enough detail so that the employee is sufficiently informed of the incident and infraction in question and its possible consequences on his employment.

      Please remember to follow due process as outlined above which has the 2 notice rule among others. In addition, keep thorough documentation.

      Reply
  11. charlene

    Hi, we are a manufacturing company operating for about 15 yrs with 9 operators on rotating shifts. However, there is an operator we would like to terminate due to habitual absenteeism and tardiness. This operator would be absent due to recurring health issues such as hypertension, vertigo or osteoarthritis. What are our options regarding termination? He would not resign because he wants us to pay him full separation pay. Can we terminate the employee without separation pay if he is unable to work for a month without being absent for several days in a week. Needless to say, his absences is affecting our schedule and production. And it is causing demoralization among the other operators, because he is getting the same benefits as the others. Will appreciate any advice. Thanks

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply
  12. tonette

    Hi, we are currently on the process of revising our code of conduct. One of the topics that has been brought up is regarding the habitual absenteeism of an employee. According to your article, it is the company’s prerogative if the firm can consider an employee to be habitually absent. The law only requires sufficient evidence to justify the action.

    My question is: if an employee advises his/ her manager or even HR that he will be absent, will it matter with law’s decision even if the absenteeism is occurring frequently along with tardiness? We are aware of the situation of the employee however, absence is too frequent that his presence cannot be counted on.

    Thank you for answering and appreciating your article a lot!

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply
  13. jhie

    Hi, if the employee had a suspension for 3 days and after that suspension he did not reported to work for 3 days but he texted that he cannot report to work because of house constraction..i would like to ask if is it consider as AWOL and what is the first action to be given to him or the due process for this kind of situation.

    Reply
    • Lawyers in the Philippines

      AWOL is when an employee did not comply with the company’s internal rules and regulations on absenteeism. If he did not, you may send him a Notice to Explain as the first step in addressing this disciplinary issue.

      Reply
  14. Chel

    For rendering the NTE, is it required that the supervisor should have issued a warning first (written or verbal)?
    Is it lawful to issue NTE right away?

    Reply
    • Lawyers in the Philippines

      Yes, a company can certainly do this.

      Reply
  15. Rommel

    HI.
    Can an employer (construction firm) complain against an employee who have been complaining at the NLRC for illegal dismissal? Truth is, he was just being transferred to another site and was even given transportation allowance to go to the other construction site but he never showed up and instead filed a complaint saying he was illegally dismissed. He was instructed by one of his co-employees before to file a complaint and asked for commission when the employer pays him his demands. What can the employer do and does the DOLE protect the employer also or only the employee?

    Reply
    • Lawyers in the Philippines

      Labor law is made to respect the rights of both the employer and the employee. On occasions when one side makes false claims, there may be no choice but for the other side to stand up for itself in a labor case.

      Reply
  16. toy

    Hi, can an employer AWOL an employee who’s rendering, for being absent for 2days subsequent to his rest day due to sickness and with medical certificate?

    Reply
    • Lawyers in the Philippines

      Hi Toy –

      This is very difficult to say as it depends on the facts.

      I am not certain what you mean.

      If the employee has a medical certificate, then this would fall under sick leave if she has followed your internal company policies.

      If the employee has no medical certificate and was simply absent, then this would be AWOL.

      Reply
  17. Phil

    Hi, good day. I would like to ask on your opinion. I have an employee who was late for a total of 53 days (total of 16 hrs plus) within 5 months. On her perfomance review, their was a phrase/provision that stated “any similar occurrences will be dealt and a Disciplinary action will be issued.Employee signed and received her performance review paper. So after 1 month, employee incurred 3 tardiness. A DA was issued to her but now, she contested it and consult a lawyer since her defense was she was only late 3 times and total was only 23 mins. Any idea on this?thank you

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply

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