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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However, it does not mean that if an employee is on AWOL status he is already terminated from service. AWOL usually constitutes violation of the company policies on vacation leave, sick leave, emergency leave, or the service incentive leave (SIL).

An employee is considered to have committed an act constituting AWOL if he absents from work without prior notice or compliance with the procedures for being absent.

Once an employee fails to report for work without prior approved VL or complying with the “no-call, no-show” policy for emergency or sick leave, there is already a suspicion of AWOL.

Despite such act, the employee still has to be asked to explain in writing his absence through the issuance of the Notice to Explain (NTE). While it does not necessarily follow that a single act of AWOL would result in termination, I personally suggest that the period to respond to the NTE should be five (5) calendar days.

In addition, the NTE is usually coupled with the Return to Work Notice (RTWO) to ensure that the employee is being reminded to comply with the duties.

It is better to have a policy of affording more than ample opportunity to be heard when it comes to employee discipline. At any rate, below is a sample NTE for reference.

For more templates and other disciplinary forms, you may check the HR Forms, Notices, and Contracts Volume 2.

To:             JUAN DELA CRUZ

From:         Malou Pete

HR Manager

Date:          21 September ___________

Subject:     NOTICE TO EXPLAIN FOR AWOL

It appears in company records that you failed to report for work on ____________ September 20____ without any filed and approved VL form.

Upon further checking, you have not also made a call applicable in cases where the employee encounters an emergency. It is our policy that employees who would be absence should promptly notify the company.

In this regard, please explain in writing within five (5) calendar days from this notice why no disciplinary action should be taken against you for the above. Likewise, you are hereby being directed to report for work immediately upon receipt of this notice.

Failure on your part to submit your written explanation within the prescribed period shall be deemed as waiver of your right to due process. For your strict compliance.

MALOU PETE

HR Manager

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A worker who overextended his vacation leave cannot be said to have abandoned his job due to the failure of the employer to adduce proof of overt acts on the part of employee showing clearly and unequivocably his intention to abandon his work. However, it is one thing to say that private respondent did not abandon his work. It is quite another to say that he is likewise not guilty of AWOL. For going AWOL, the employee may be subjected to disciplinary action.

Most companies require their employees to file their leave form prior to the taking of vacation leaves.

While it is not generally possible for an employee to anticipate when he will be ill or have to attend to some family problem or emergency, and be able to give prior notice to his employer, he should give such notice when he will be absent for some other cause, such as when he will attend to some other business elsewhere, for such engagements can be properly scheduled by him so as not to interfere with his regular working hours and disrupt the operations of the company in his particular area of assignment. Without prior notice of the employee’s absence, the company is not afforded enough time to get a

temporary replacement for him.

In the following instances, the Supreme Court held that there is abandonment:

1. Failure of employee to work after the expiration of his authorized leave;190
2. Failure to comply with reinstatement order;
3. Deliberate absence without permission to look for work elsewhere;

At some point, the Supreme Court held that the dismissal of employees for abandonment is unjustified since their absence was due to their arrest and detention for seven months for the alleged violation of the Revised Penal Code.

However, an absence to evade arrest and to ward off the long arm of the law is not a valid justification. To do so would be to place an imprimatur on the attempt to derail the normal course of the administration of justice.

Sea based workers are governed by the maritime practice with respect to their conduct while engaged to perform a voyage. Thus, desertion is the common charge against a seaman who jumps ship.

Desertion, in maritime law is the act by which a seaman deserts and abandons a ship or vessel, in which he had engaged to perform a voyage, before the expiration of his time, and without leave. By desertion, in maritime law, is meant, not a mere unauthorized absence from the ship, without leave, but an unauthorized absence from the ship with an intention not to return to her service; or as it is often expressed, animo non revertendi, that is, with an intention to desert.

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However, AWOL can lead to abandonment of work. This happens when the employee being directed to report for work after being on AWOL refuses to report for work.

Thus, the employer usually escalates the violation to abandonment of work. Notably, abandonment of work is a ground for dismissal since it falls within the gross and habitual neglect of duty under Article 297 of the Labor Code, as amended.

The employer has to address the AWOL issue immediately as it happens. Otherwise, it can lead to issues on punctuality.

An employee can be on AWOL due to several instances. An employee who fails to report to work without filing the vacation leave (VL) form or obtaining an approval for it. An employee can be on AWOL if, after the VL application was granted, extended the leave but without prior approval. This is common for employees who filed VL and went on vacation far away from the place of work.

An employee who got sick but failed to comply with the requirements for sick leave such as medical

certificate, etc.

Below is a sample Notice to Explain (NTE) for AWOL with directive to report for work:

To:             MA. ABSENCIA

From:         HR

Date:          __________________

Subject:     NOTICE TO EXPLAIN (NTE) AND RETURN TO WORK ORDER

It appears in our record that you have been absent for the past three (3) days, or from ____ May 20___ to ____ May 20___. Upon verification of the records no prior VL has been filed. You have also failed inform the office about your absence pursuant to our policy on call-in sick, where applicable.

In this regard, please explain in writing within five (5) calendar days from receipt of this notice why no disciplinary action should be taken against you for the above.

Likewise, you are hereby being directed to report for work immediately upon receipt of this notice.

AYA O. SAPALA-LIVAN

HR Manager

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Abandonment is a form of neglect of duty; hence, a just cause for termination of employment under Article 297 of the Labor Code, as amended.

Ordinarily, a common impression is that an employee who never reports for work for a certain period of time and without notice to the employer has abandoned his work.

This is not accurate. Mere absence does not amount to abandonment. There are requisites which must concur before an unauthorized absence can be considered as abandonment.

To constitute abandonment, however, there must be a clear and deliberate intent to discontinue one’s employment without any intention of returning.

Two (2) elements must concur:

1. The employee must have failed to report for work or must have been absent without valid or justifiable reason; and
2. There must have been a clear intention on the part of the employee to sever the employer-

   

   employee relationship manifested by some overt

Absenteeism per se is not an overt act which would prove an unequivocal intent on the part of the employee to discontinue employment.

Otherwise stated, absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore.

The second element above is the more determinative factor being manifested by some overt acts from which it may be deduced that the employee has no more intention to work. The intent to discontinue the employment must be act.

Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts

(Hantex Trading Co., Inc. vs. Court of Appeals, G.R. No. 148241, September 27, 2002).

It cannot be argued that the fact that employees “simply disappeared” from their work, they are guilty of abandonment. Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. And the burden of proof to show that there was unjustified refusal to go back to work rests on the employer.

For abandonment to exist, two requisites must con- cur: first, the employee must have failed to report for work or must have been absent without valid or justifiable reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee relationship as manifested by some overt acts.

The second element is the more determinative factor. Abandonment as a just ground for dismissal thus requires clear, willful, deliberate, and unjustified refusal of the employee to resume employment. Mere absence or failure to report for work, even after notice to return, is not tantamount to abandonment.

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