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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However, during the pendency of the case, the employee may have decided to seek employment. What will be the effect on the labor case that he filed?

As held in the case of Hda. Dapdap I vs. NLRC, (285 SCRA 9 (1998).) the fact that the employee’s starting date of employment in a new company coincides with the date of the original complaint strongly indicates that such employment was only meant to help employee and his family survive during the pendency of his case. It has been said that abandonment of position cannot be lightly inferred, much less legally presumed from certain equivocal acts177 such as an interim employment.

An employee who filed an illegal dismissal case cannot be faulted for looking for other employment since he must continue to feed, shelter and clothe himself and his family.

It may occur that in a proceeding before the Labor Arbiter the employer offers reinstatement to the complaining worker. But the employee refuses to be reinstated. Is the refusal a sign that the employee lacks interest to work and ultimately negates employee’s claim of illegal dismissal?

The Supreme Court answered in the negative. It considered the refusal to be reinstated as more of a symptom of strained relations between the parties, rather than an indicium of abandonment of work as obstinately insisted by the employer. While the employee desires to have his job back, it must have dawned on him that the filing of the complaint for illegal dismissal and the bitter incidents that followed

have sundered the erstwhile harmonious relationship between the parties.

Where evidence that the employer had dismissed the employee was lacking, the refusal of the employee to resume work during the hearing before the Labor Arbiter was considered as an indication of lack of intention to dismiss on the part of the company and the worker’s lack of interest in resuming work.

As held in the case of Hantex Trading Co., Inc. vs. CA, neither does the fact that the employer made offers to reinstate the employee legally disproves illegal dismissal. The Supreme Court observes that the offer may very well be “a tacit admission of employees that they erred in dismissing him verbally and without observance of both substantive and procedural due process.”

In such case, employer’s offer of reinstatement was made only after more than one (1) month from the date of the filing of the illegal dismissal case. Their belated gesture of goodwill is highly suspect. If petitioners were indeed sincere in inviting respondent back to work in the company, they could have made the offer much sooner. In any case, their intentions in making the offer are immaterial, for the offer to re-employ respondent could not have the effect of validating an otherwise arbitrary dismissal.

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin

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Twin Requirements of Notice and Hearing

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Notice to Explain: Contents and Requirements

Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of case.

The totality of infractions or the number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee. The offenses committed by him should not be taken singly and separately but in their totality. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct, and ability separate and independent of each other.

In the case where the employee committed numerous infractions in his one year and eleven-month stay in the company such as being issued a warning for failing to check the right quantity of materials subject of his inventory, going undertime incurring absence without asking for prior leave, having been warned for failure to implement proper warehousing and housekeeping procedures, failure to ensure sufficient

supplies of oxygen- acetylene gases during business hours, having been warned again for failing to secure prior permission before going on leave and finding by Accounting that he made double and wrong entries in his inventory.

According to the Court, such numerous infractions are sufficient to hold him grossly and habitually negligent. His repeated negligence is not tolerable. The totality of infractions or the number of violations he committed during his employment merits his dismissal. Moreover, gross and habitual negligence includes unauthorized absences and tardiness, as well as gross inefficiency, negligence and carelessness.

Invoking Valiao v. Court of Appeals, the Court said that “fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct, and ability separate and independent of each other.”

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin

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Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements

Sexual harassment is an imposition of misplaced “superiority” which is enough to dampen an employee’s spirit and her capacity for advancement. It affects her sense of judgment; it changes her life.

Justice Puno wrote in the case of Villarama vs. NLRC and Golden Donuts, Inc. that sexual harassment abounds in all sick societies. It is reprehensible enough but more so when inflicted by those with moral ascendancy over their victims.

Republic Act 7877 or the “Anti-Sexual Harassment Act of 1995” governs the cases of sexual harassment. In section 3 of the law, it provides that:

“Section 3. Work, Education or Training- Related, Sexual Harassment Defined.—Work, education or training-related sexual harassment is commit ted by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment,

demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act.

(a) In a work-related or employment environ- ment, sexual harassment is committed when:

(1) The sexual favor is made as a condition in the hiring or in the employment, re- employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would dis- criminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;

(2) The above acts would impair the employee’s rights or privileges under existing labor laws; or

(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.

(b) In an education or training environment, sexual harassment is committed:

(1) Against one who is under the care, custody or supervision of the offender;

(2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;

(3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other bene- fits, privileges, or consideration; or

(4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.

Any person who directs or induces another to commit any act of sexual harassment as herein de- fined, or who cooperates in the commission thereof by another without which it would not have been commit- ted, shall also be held liable under this Act.”

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin

Read more on procedural due process discussion by Atty. Elvin:

Read more on procedural due process by Atty. Villanueva:

Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements