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.

2 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

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