Absence in Relation to the Charge of Neglect of Duty

Absence without official leave or AWOL is a form of neglect of duty. Under the Labor Code, gross and habitual neglect of duty is one of the grounds for dismissal of employment.

AWOL, may constitute a neglect of duty, does not necessarily amount to a dismissible offense considering that the law requires the omission to be both gross and habitual.

The Supreme Court (SC) held that neglect of duty, to be a ground for dismissal under Article 282 [now 297] of the Labor Code, must be both gross and habitual. (Nissan Motor Phils., Inc. v. Angelo, G.R. No. 164181, September 14, 2011, 657 SCRA 520, 530.)

Gross negligence implies want of care in the performance of one’s duties. Habitual neglect imparts repeated failure to perform one’s duties for a period of time, depending on the circumstances.

Under the above standards and the circumstances the SC held that the employee in the case of Cavite Apparel, Incorporated vs. Marquez (G.R. No. 172044, February 06, 2013) is not guilty of gross and habitual neglect of duties.

In such case, the employer, Cavite Apparel, claims that the employee committed gross and habitual neglect of duty for being absent in four occasions for the past six years.

According to the SC, based on what found in the records, there simply cannot be a case of gross and habitual neglect of duty against the employee. Even assuming that she failed to present a medical certificate for her sick leave on May 8, 2000 (one of those dates where the employee allegedly failed to

report), the records are bereft of any indication that apart from the four occasions when she did not report for work, the employee had been cited for any infraction since she started her employment with the company in 1994.

Four absences in her six years of service cannot be considered gross and habitual neglect of duty, especially so since the absences were spread out over a six-month period.

Further, the SC did not consider the employee’s dismissal to be commensurate to the four absences she incurred for her six years of service with the company, even granting that she failed to submit on time a medical certificate for her May 8, 2000 absence.

The SC found that the employee failed report for work on May 15 to 27, 2000 due to illness. When she reported back for work, she submitted the necessary medical certificates. The reason for her absence on May 8, 2000 – due to illness and not for her personal convenience – all the more rendered her dismissal unreasonable as it is clearly disproportionate to the infraction she committed.

As a final point, the SC reiterated that while the courts recognize management’s prerogative to discipline its employees, the exercise of this prerogative should at all times be reasonable and should be tempered with compassion and understanding.

Dismissal is the ultimate penalty that can be imposed on an employee. Where a penalty less punitive may suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe for what is at stake is not merely the employee’s position but his very livelihood and perhaps the life and subsistence of his family.

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