My brother works as an office assistant for about a year and a half now. Three months ago, he figured in an accident that resulted in a hip fracture. He informed his employer about it and was on leave for nine days. Although his doctor cleared him already to go back to work after his hospitalization, he was still suffering from a lot of pain. So, he was advised to take further rest and go through therapy sessions. He is really concerned that he no longer has enough leave credits, so he tries to show up for work even if he feels some discomfort.
In a couple of weeks, he might go through a series of treatments. If he does not present himself to work, will it be considered as abandonment or AWOL and eventually result in his termination? He really needs his job especially now that his bills are piling up. I am looking forward to your response.
Absence without official leave (AWOL) and/or abandonment of work is often taken as a cause for termination of the services of a private employee. But there are important factors to consider first before termination by an employer may be said to be valid and lawful because, as already stated by Chief Justice Maria Lourdes Sereno in the case of Tegimenta Chemical Phils. and Vivian Rose R. Garcia vs. Mary Ann Oco (G.R. No. 175369, February 27, 2013), the mere absence of an employee is not sufficient to constitute abandonment. Sereno emphasized in the case:
“x x x
For abandonment to exist, two factors must be present: (1) the failure to report for work or absence without a valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor being manifested by some overt acts.
x x x
Abandonment is a matter of intention and cannot lightly be inferred or legally presumed from certain equivocal acts. For abandonment to be appreciated, there must be a “clear, willful, deliberate and unjustified refusal of the employee to resume employment. “ x x x” (Ibid.)
Accordingly, it would be prudent on the part of your brother to inform his employer, or the latter’s authorized representative, of the series of treatments that he needs to undergo and secure approval of his forthcoming absences. Taking into account his health issues, he may be able to justify why he needs to take some time off from work. Nevertheless, expressly notifying his employer of the matter is crucial as it will establish his desire not to abandon his work and that he has intention of returning, especially considering the fact that he no longer has enough leave credits to sustain his upcoming absences.
It has to be emphasized that while our labor laws take into account the protection and upholding of the rights of the laborers, the latter should not be remiss in their responsibilities to their employers, such as but not limited to notifying their employers of matters, even personal to them, as long as it may or can affect their employers, the companies or institutions they work for or their productivity therein.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com