• AWOL ground for termination

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I worked as a liaison officer of a private bank. A part of my job is to, once a week, go from one branch to another and deliver documents. Last December 2015, I figured in a vehicular accident while I was on board a motorcycle on the way to one of our branches. I had to be hospitalized for two weeks and after my discharge, I was required to continue therapy sessions for two to three months in order to rehabilitate my legs, which were badly injured.

    I applied for sick leave for one month in January of this year to better address my therapy treatments, and it was approved by our HR. Come February, my legs were still in a bad shape, so I asked my supervisor to allow me to extend my leave, which he approved. I came back on the 1st of March, but I was not allowed to enter our office. The guard said the was given orders not to let me in because I was terminated for being “AWOL.” I told my supervisor about it and he said there is nothing he can do because it was management decision. Can my employer really terminate me? What remedy do I have? Please help me.

    Dear Jumbo,
    Employers have the right to terminate the services of their employees as long as due process is complied with. Due process, under our law, has two facets: (1) substantive due process, and (2) procedural due process.

    As to substantive due process, it is required that there be a legal basis for the termination of an employee. It may be for causes explicitly mentioned under their employment contract or written company rules and regulations, or for any of the just and authorized causes provided for under Articles 282, 283 and 284 of the Labor Code.

    As to the matter of procedural due process, it is required that a written notice be given to the employee within a reasonable time from the effective date of termination. Such notice must clearly inform the concerned employee of the cause/s of his termination as provided for in his contract. If the basis for the termination is any of the just causes mentioned under the Labor Code, (a) a written notice must be served on the employee specifying the ground/s for his termination, and giving him reasonable opportunity within which to explain his side; (b) hearing must be conducted; and (c) a written notice of termination must also be served on the employee, indicating that upon due consideration, grounds have been established to justify his termination. For termination due to authorized causes, due process is deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least thirty days before the effectivity of the termination, specifying the ground/s for termination (Section 2 (d), Rule I, Book Six,Implementing Rules and Regulations (IRR) of the Labor Code).

    In the situation that you have presented, we believe that being on “AWOL” or “absence without leave” may be considered a ground for termination of employment. Even if the same is not clearly dealt with under your contract of employment, it may still be a basis for termination as it is provided for under Article 282 of the Labor Code. The provision states, “An employer may terminate an employment for any of the following causes: x x x (b) Gross and habitual neglect by the employee of his duties; x x x”

    Accordingly, if you did not properly secure a leave of absence prior to or after not reporting for work last February, such may serve as a ground for your employer to consider terminating your services. It is tantamount to grossly abandoning or neglecting your work.

    We wish to emphasize, however, that your employer cannot simply terminate your services without complying with procedural due process. Thus, a written notice must have been served upon you so as to inform you of the cause of your termination and give you an opportunity to explain. A hearing or investigation must have been conducted and, thereafter, a written notice of termination must have been served upon you. If the same has not been complied with, you may file a complaint for illegal dismissal before the National Labor Relations Commission (NLRC). Please be advised that such action may only be brought within four (4) years from the time of dismissal.

    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 dearpao@manilatimes.net


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