Termination due to AWOL, Tardiness or Abandonment
Yes, you can Terminate for frequent tardiness and absences.
Termination due to AWOL, Tardiness or Abandonment of Work is something every HR Personnel will handle during their career. So it’s important to know the Philippine Labor Law on Tardiness, as well as the DOLE rules on Tardiness and Absence Without Leave.
Let’s set the scene.
You’ve got an employee who’s frequently late and always absent on your hands, and you are wondering if it’s possible to fire him under Philippine Labor Law.
It is.
I’ll explain below how and under what circumstances you need to do this.
At the end of this article, you should have an idea of what the legal grounds and common definitions are under Philippine Labor Law, as well as the Processes for Termination due to Absence Without Leave, Tardiness or Abandonment of Work.
If you would like to discuss any particular Termination cases or scenario’s you can Contact Us
Overview of Termination due to AWOL, Tardiness or Abandonment
Tardiness is a common problem for Philippine HRs and it can be difficult for a business when it has employees who have timekeeping issues. Frequent tardiness and absenteeism decreases productivity and can seriously hamper operations.
Research in America shows that employee tardiness costs businesses more than 3 billion each year in lost productivity. Imagine what impact tardiness in the Philippines could have if left unchecked, in a country not renowned for its timekeeping!
If 1 employee is 10 minutes late every working day for one week that is a loss of an hour a week.
If that employee is part of a team that works together they are affecting not just their own deadlines or productivity but their teams too.
These issues are grounds for Termination under certain conditions and fall under section b, Art 297 (formerly 282) of the Philippine Labor Code.
(b) Gross and Habitual Neglect by the employee of his duties;
In such cases, it is important for HR Personnel to build the case that the employees behavior is Habitual.
Do you have an employee that is always late?
It is best practice to ensure that your company has good HR policies in place and that these are communicated with employees as part of their induction when joining the company.
These policies can be collated together into an Employee Handbook.
Any policy covering timekeeping or tardiness should clearly state expectations around timekeeping. It should also lay out and follow the Twin Notice Rule for Just Cause Termination [G.R. No.165282].
- Notice to Explain (NTE) (Twin Notice Rule #1) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.
- Administrative Hearing Process where the employee may air his side. A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.
- Notice of Termination (Twin Notice Rule #2). A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.
Always remember to speak to your company lawyer in case you have any clarifications about the Grounds for tardiness under Philippine Labor Law, and make sure that you have the correct documentation.
Termination due to Frequent Tardiness
As an HR Personnel your role will be to keep an accurate record of the instances of tardiness of any employees or cases where an employee was Absent Without Leave. You may be asked to discuss the issue with the employee to establish if there are any underlying causes.
But if your company has an employee who is frequently tardy or absent without leave, his Manager might want to dismiss him.
There are Supreme Court cases in support of Terminating tardy employees and Termination due to AWOL.
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.
He was also absent 19 days out of 66 days of the first quarter of 2000. That’s almost 1 working month of being Absent Without Leave!
The frequent tardiness and absences of the company’s sole driver caused the company great difficulty.
In addition to the tardiness and being AWOL he was the only driver employed by the business. His tardiness and absenteeism delayed deliveries and the pick-up of supplies and resulted in a significant impact on the business.
The employee received several warnings about his tardiness and also met with Management to discuss his timekeeping issues. He was eventually issued a Notice of Termination.
The employee went to DOLE with a claim for Illegal Dismissal but DOLE dismissed his complaint for Lack of Merit. The employee then filed at the Court of Appeals for Grave Abuse of Discretion and won his case.
The case went on to the Supreme court due to the differing judgements. When the case reached the Supreme Court the court classified his tardiness and absences as Habitual and upheld his dismissal under Philippine Labor Law.
Whilst this was eventually a good outcome for the company, responding to a DOLE complaint or case and then Court cases takes both time and money.
In this case the sole proprietorship followed due process set out in the Philippine Labor Code. They did as much as they could to try to come to an agreement with the driver, but he remained steadfastly adamant in his behavior.
Termination due to AWOL or Absenteeism
If your employee has been AWOL only once, firing shouldn’t be your first option.
Yes, it can certainly be disappointing when the person who is Absent Without Leave is a new employee. Our immediate thoughts might be “don’t you want to create the best impression in your first few months in the job?!”
But it may indicate there is a need for more focus to be given on covering the issues of Timekeeping, Tardiness, Absenteeism and being Absent Without Leave with the employee.
Some companies ask their new employees to sign a document to say that they have read and understood the company’s Employee Handbook or Policies. They even break these down as a tickbox list for each employee policy or subject.
If the employee has been Absent Without Leave several times however, you might start considering the Termination due to AWOL route.
Do you have an employee who is frequently absent?
In the Japos vs. FarmCoop [G.R. 208000, Jul 26, 2017] case, the Court upheld the termination. The employee had been absent on 6 different occasions and had been issued several Written Warnings about his absenteeism.
The Court assessed that the company had followed due process under Philippine Labor Law. The Court also quoted the company’s Policy on Absenteeism and the Employee’s Record documentation that it was presented with.
Frequent absenteeism can hurt your business.
The employees Termination for Absenteeism was very clear in this case.
The business was able to evidence to the Court that they had a good employee policy in place, their Employee Record documentation was in order and they followed due process under the Philippine Labor Code.
As a HR Personnel it is prudent to carry out your duties diligently.
If your Policies are in place, you maintain up-to-date and accurate Employee Records and you ensure you are following due process and the Philippine Labor Law, you will be easily able to explain situations or reasoning to your employee and best represent Management.
Termination for Abandonment of Work
Abandonment and Absence Without Leave (AWOL) can sometimes be confused with each other.
But they are different things and have they have different effects. If you are considering employee Termination for Abandonment of Work it is important to understand the difference.
Absence Without Leave (AWOL) is when an employee is absent and has not followed internal company guidelines on requesting leave.
An employee can face Termination for being Absent Without Leave but it is not the same as Abandonment of Work!
Whilst an employee going AWOL is not Abandonment of Work, it may lead to Abandonment.
In the eyes of Philippine Labor 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]
So, as an HR Personnel how do you prove the second requirement?
In the case of Agabon vs. NLRC [G.R. 158693, Nov 17, 2004]Â the company was able to evidence to the court that they had requested 2 employees to return to work. The 2 employees did not return to work at the company because they were already working for another company.
Needless to say, the 2 employees request for a ruling of Illegal Dismissal was denied by the court.
Once again, ordered and complete Employee Records files won the day for the company.
You must try a range of mediums to contact an employee where you suspect Abandonment of Work.
To evidence Abandonment of Work as a ground for Termination, you will have to try to contact your employee several times and through several different mediums.
This may be by letter mailed to their last known address (recorded/signed for), by email, by SMS, by telephone or by any employee communication channels that you have in place (Slack, Microsoft Teams, Zoom, WhatsApp etc.).
As I have said throughout this article it is vital that you keep a log of the mediums that you used to communicate with the employee, along with the date and time.
If your attempts are unsuccessful or ignored by the employee, you have clearly shown that the employee has no intention of returning to work and can substantiate that when proceeding with Termination for Abandonment of Work.
Process for Termination for Abandonment Of Work
For Just Cause, there is the Twin Notice Rule:
- Notice to Explain (Twin Notice Rule #1)
- Administrative Hearing Process where the employee may air his side
- Notice of Termination (Twin Notice Rule #2)
The Just Cause process is pretty clearly laid out in my 2022 Guide to Terminating Regularized Employees for the Philippine HR and you can refer to this for clarification.
It is worth noting that you should always consult with your company lawyer when you consider Termination due to AWOL, Tardiness or Abandonment so that you are properly guided, particularly for the more complex cases.
Atty. Francesco C. Britanico, FCB Law Firm
Lawyers in the Philippines
How many Notices do we have to send to AWOL employee’s home address in order to terminate him/her?? Thanks in advance
AWOL of 30days- is the company have the right to terminate the employee?
That is certainly sufficient ground.
Asks question, what if an employee are late not exceeding 15 minutes per day for eight days ,for a total of 53 minutes per month, it is considered as suspension offense?
This may depend on the company policies communicated to the employees beforehand. Do note that the math of the given scenario does not add up.
I submitted my resignation and approved by the company. But they want to extend my stay because something came up and they needed to investigate. I can participate in the investigation but I would like to take my leave since i’m having health problems and not to fit for work, i have my doctors recommendation because of covid 19. Can I do that or i should ask them nlng to terminate me para walang gulo?
You can resign as a matter of right.
I was able to file an Immediate resignation but, I did not process my clearance and now I have been away from the company for two years. Can I still comply with Clearance? and get a Certificate of employment?
Would it be considered as AWOL? Even you submitted an immediate resignation with a valid reason?
You can contact the company about clearance. All employees are entitled to a certificate of employment.
Already answered your earlier question.
I am filing immediate resignation but my company won’t allow me. If I will render less than the days they require me or i will leave the company earlier, can I still process my clearance and get my unclaimed salary and COE?
Although you are entitled to your salary, clearance may pose a practical problem if you do not follow exit protocols so that the company may withhold it until the clearance procedure is complied with.
I was able to file an Immediate resignation but, I did not process my clearance and now I have been away from the company for two years. Can I still comply with Clearance? and get a Certificate of employment?
This is something to take up with the company itself.
Would they consider me as AWOL even though I have been filed an immediate resignation with a valid reason?
If you have validly resigned, they you can no longer be terminated.
Can I still claim my separation fee? Howeve, They disclose this situation as AWOL.
There is no separation pay for resignation. You may be entitled to unclaimed salary, but this is different from separation pay.
I AWOL from my last job. If I will immigrate to another country, is there a chance that I will get hold or i cannot immigrate due to this?
We cannot speak for the immigration requirements or policies of other countries.
Hi. We have a small business in the food industry. As such, we don’t have an HR unit and no existing policies are in place with regard to AWOL. In our case, we have suspended our operations for 1 month due to the pandemic (COVID-19), however, upon the resume of operations, we have been contacting our employees if the will be able to report. 1 year has passed and they still have not reported to work since the temporary closure of the business. Can this be a ground for lawful termination? We are in the process of writing a notice of termination and just wanted to confirm if this is a lawful process. Besides, we are also cutting out personnel costs. Thank you.
This can be considered AWOL.
Good day! We have 2 employees on “absenteeism”. the 1st is ‘gone for 2 weeks, then report for 2 days then absent for 2 weeks. the 2nd is gone for 2 months now. what would be the appropriate case for these 2 truck helpers that hampers our operation. thankyou and Godbless.
The grounds for absenteeism appear present. The two notice rule requirement should be followed in any case.
Is AWOL qualified to receive a separation pay and 13th month benefit?
Only 13th month pay.
Hi, hope you can help me on the rule on tardiness. If an employee comes in late like, 10 or 20 minutes, say 8:15 when the prescribed time is 0800 but he/she works 30 minutes after office time, is that acceptable? What is the law on that? Thank you.
This very much depends on company policy as made known to the employees in the company handbook or in office circulars and office custom or practice.
What if the employee did not report for work for more than 5 months then one day came to the office and wants to go back to work
Unless there is something else to consider, that’s very clearly an unreasonable expectation.
can we terminate an employee who is always absent in one month and many tardiness..
Termination is possible due to excessive habitual absences.
Please do read the above post to see supreme court pronoucements, the process and other information on how to do this well.
Hello.
Are employees required to affix their signature in a company policy? Or is it okay that the policy was just read to them? This is in line with absenteeism and awol, so we can give them NTE. Thanks
Sent an email.
Is there a 15 minutes grace period time?
This depends on your company.
Our company already sent NTE letters to our 3 employees for not reporting to work without leave advice (AWOL), and gave them 5 days to explain their side. We also invited them to our office to air their side but they did not came. Is it legal that we issue another letter to them like Notice of Termination? We just learned that 1 of them is already working in other company. Our company’s policy for AWOL, first offense is Dismissal. Thank you.
Sent an email.
Good day. We have one employee who has been habitually absent for the last three years. He had received memos, and suspensions for the same violation. His last suspension was January 2019. However, during the past months, he only incured five tardiness every month (february to june). Can we still terminate him for the same violation? He is also not performing and not hitting target sales. Thank you
Hi Ayen:
In general, the labor law allows termination due to tardiness and absences. It also permits termination if the person has not attained performance targets.
It is important to follow labor law in both substantive and due process requirements when terminating.
Please note —
It is not possible for me to comment on your specific situation since I am not familiar with all the facts of the case. I generally review the case thoroughly before commenting on a specific situation.
The hyperlink for the 2018 Guide to Terminating Regularized Employees for the Philippine HR does not work. Please direct where else we can access the guide. Thanks!
Do you mean this: https://lawyerphilippines.org/2018/06/21/termination-guide-regularized-employees-for-the-philippine-hr/
May I ask how many days are there to be said as habitual absences? 10 days absences in a year can be a ground for termination? If the company terminates an employee, will the employee receive separation pay? Thank you.
There is no specific number stated by law.
It is up to the court to interpret what this might mean in a certain situation.
What if the employee keeps on being absent due to sickness? Though they are able to provide medical certificate but they are not able to complete the 40hrs working hours. What if its becoming their behavior? Like its happening every month.
This will depend on the situation.
There are possible alternatives but more information, company documents, and interviews with the people involved need to be conducted to accurately determine the correct course of action.
Hi,
RE:Absenteeism, employee had been habitually making absences for more than 2 years now (no pattern e.g. not every Monday but never miss to absent every month (7 – 10 days), she informs the HR/Office with a valid reasons.Already made due process (many times) sending her notices, reprimand, counseled, and letting her commit willingly to change for her sake. I believe proper due process was made. Can she be terminated? She is one of the pioneers in the company (20 yrs)
Thanks
Dear Buds:
Tardiness and absenteeism is a ground for termination.
However, I never comment on a particular situation until the documents are examined and interviews with the HRs are conducted as it is difficult to tell from simply hearing one side.
Can you terminate an employee who was served with a lot of suspension already due to major offenses?
How many suspension case should merit a termination?
Dear Allan:
It will depend on the situation.
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
Sent you an email.
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?
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.
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?
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.
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?
Yes, a company can certainly do this.
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.
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.
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!
Sent you an email.
hi,
same question above
thank you so much this will help me a lot.
Gross and habitual neglect of duty by the employee is a just cause for the termination. An employee’s habitual absenteeism without leave, which violated company rules and regulations, is sufficient to justify termination from the service. Habitual tardiness and/or absenteeism is a form of neglect of duty as it exhibits the employee’s deportment towards work and is therefore inimical to the general productivity and business of the employer. This is especially true when the tardiness and/or absenteeism occurred frequently and repeatedly within an extensive period of time.
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
Sent you an email.
Hi. Do we need to issue a memo on the employee for his tardiness before we can proceed to asking a notice to explain?
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.
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
Abandonment has requirements that must be followed for it to be an allowed ground.
I go through this in: https://lawyerphilippines.org/2018/06/26/termination-due-to-awol-tardiness-or-abandonment/#Termination_for_Abandonment
If the employee does not qualify for abandonment, it is first usually classified as AWOL for which internal company processes apply.
Note that due process and documentation must be followed in all situations.
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
Hi JM:
Please clarify the situation. I am not sure what the concern is.
Hi just want to have some clarification will it be considered if an employee did a 3 days of absents with notice on their supervisor regarding on a matter of child emergency since employee is a single mom. Now company gave the employee a notice to explain and a hearing for the AWOL issue which the employee clearly provided that she did gave further notice on those dates employer claims that she was AWOL.
If it is still at the administration side of the company, work with your company HR and see what can be done.
We have an employee under probationary period and started AWOL. We’ve sent him 1 email of NTE and 2 mails of Request for appearance but we haven’t heard from him for 2 weeks now.
Do we still need to send a Notice of Termination letter to him?
Sent an email.
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.
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.
In case agreed to be terminated because of tardiness, am I entitled for any seperation pay?
No, employees terminated due to just causes are not entitled to separation pay.
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?
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.
Is halfday absent consider awol
Did you inform your HR? Did you follow the Code of Discipline?
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.
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.
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?
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.
How many absences, tardiness, abandonment are needed before to terminate a worker?
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.
Hi. Can an AWOL government employee go back to service?
Speak to the government agency involved.
This is another issue.
Our boss issued a memo to her staff requiring them to tender courtesy resignation to have a new leadership team.
I did not follow the memo, is it a ground for insubordination?
Forced resignations are not allowed in private companies.
Can employer terminate the employee while rendering?
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.
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
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.
Hi! Can the employee be marked awol, even if she informed ahead of her temporary leave through chat? and the employer gave her permission?
She may raise this with HR / the employer to clarify the matter.
Good evening,
If the case is termination and there’s a right process followed by the company.the employee cannot received any amount of his benefits?
There is no separation pay under there just causes of termination where it was the employee at fault.