Abandonment of work, AWOL - Employment Law PH (2023)

1. Concept

Abandonment of work is interpreted as "clear and deliberate termination of employment, with no intention of returning". (Demex Rattancraft, Inc. v. Leron, G.R. No. 204288, 8 November 2017)

Separation is an employee's willful and unreasonable refusal to return to work. It constitutes negligence and is just cause for termination of employment under Section 282(b) of the Labor Code. (Tan Brothers Corporation 诉 Escudero, G.R. No. 188711, July 8, 2013)

a. elements of renunciation

To constitute a waiver, two (2) elements must simultaneously be met:

1) Unauthorized absence from work or absence from work, and,

2) There is an obvious intention to sever labor-capital relations, of which the second element is a more decisive factor, and it is manifested through some obvious behaviors. (Borja v Minosa, G.R. No. 218384, July 3, 2017)

1) Unexcused absenteeism or absenteeism

Mere absence is not enough. (ditto.)

Simply not showing up for work is not enough to support an abandonment charge. The employer must show clear evidence that the employee "willfully and unreasonably refused ... to resume his [or her] employment," as demonstrated by the employee's overt conduct. (Demex Rattancraft, Inc. v. Leron,ditto.)

2) Clear intent; overt act

Waiver is a matter of intent and cannot be easily inferred or legally inferred from certain ambiguous acts. To understand a waiver, there must be "a clear, willful, deliberate and unreasonable refusal by the employee to return to employment." (Tegimenta Chemical Phils。和 Vivian Rose D. Garcia, G.R. No. 175369, 27 February 2013)

An intent to sever the relationship between the employer and the employee may be demonstrated by the employee's overt conduct. However, such intent "cannot be easily inferred or legally inferred from certain ambiguous conduct". Overt behavior, after comprehensive consideration, must clearly indicate the purpose of the laborer to terminate the labor relationship. (Demex Rattancraft, Inc. v. Leron,ditto.)

Stated otherwise, the absence must be accompanied by clear behavior that unambiguously indicates that the employee simply does not want to work anymore. (Tan Brothers Corporation 诉 Escudero,ditto.)

b. just cause for dismissal

Although Article 297 of the Labor Code does not explicitly list quitting a job as a valid reason, jurisprudence has seen it as a form or akin to negligence. (Demex Rattancraft, Inc. v. Leron,ditto.)

A waiver that constitutes just cause for dismissal because "laws protecting the rights of laborers neither authorize oppression nor self-destruction against employers." Employers must not be compelled to retain employees who fail to perform their duties to the employer, especially the basic Task. (Protective Maximum Security Agency, Inc. v. Fuentes, G.R. No. 169303, 11 February 2015)

2. Burden of Proof: Employer

The burden of proof is on the employer to prove that the employee willfully and unreasonably refused to return to work without an intention to return. (Borja v Minosa,ditto.)

The burden of proving waiver is on the employer, who has a legal obligation to observe due process, whether as grounds for firing an employee or simply as a defense. (Atienza by Saluta, G.R. No. 233413, June 17, 2019)

3. Incompatible with constructive dismissal

Waiver is incompatible with constructive dismissal. (Borja v Minosa,ditto.)

An employee who takes steps to protest his dismissal cannot logically be said to have given up his job. (Atienza by Saluta,ditto.)

In theory, this was enough evidence of a desire to return to work, so filing an immediate wrongful dismissal complaint—especially when it included prayers for reinstatement—was seen as entirely inconsistent with the charge of being abandoned. (Tan Brothers Corporation 诉 Escudero,ditto.)

To reiterate, dropping a stance is a deliberate matter that cannot be easily inferred from some ambiguous behavior, let alone legally presumed. (Claudia's Kitchen, Inc. by Tanguin, G.R. No. 221096, June 28, 2017)

case analysis

a. give up

Mehitabel, Inc. v. Yufher Alqueza (2017)G.R. No. 228701-02, 13 December 2017 The employee is the purchasing manager of the employer, a high-end furniture exporter. A few months into the job, the employee received complaints about poor job performance, causing delays in the production and delivery of the company's goods. Human resources officials advised him on his performance, to no avail. After some time, the employee leaves the office and on the way out notifies the HR officer and security that he is leaving. The Human Resources Officer issued a return to work order by certified mail with notice instructions. After receiving the notification, the employee did ignore the notification. The employee has filed a wrongful dismissal complaint without the employer's knowledge. As a defense, the employer asserted that the employee gave up his job and was never fired. Solution: The employee quits his job. The Employer hereby sends the Work Order to [employee] with a return order, which is received by registered mail. This situation is more important and effectively negates [employee's] self-interested assertion that he was fired; it doesn't just mean that the company still considers [employee] as its employee..."employee" does not comply with Return to Work Instructions in  …", indicate his intention to sever employment with [employer], and lend credence to the latter's claim that [employee] abandoned his job. Furthermore, this omission confirms that [human resources officer and security personnel ], who actively testified to the fact that [the employee] deserted. The former’s office and belongings such as the company phone were left behind. The HR officer asked how to get in touch because he handed over the phone and the employee did not answer. The employee told the security staff that he was no longer Needed to show exit pass and didn't need to write on the exit log as he was quitting his job. The employee confirmed the conversation with the HR officer. Security wrote this on the exit log. Petitioner, ultimately resulted in an abandonment." The employee "cannot rely on the fact that he filed a wrongful dismissal complaint to demonstrate that he did not abandon his job, since filing such a complaint does not, in itself, preclude abandonment. It is not the only indicator for determining whether there was a dismissal, It is illogical that there should never be a wrongful dismissal complaint filed if the employee has not actually been fired."

b. did not give up

Borja v MinosaG.R. No. 218384, 03 July 2017 The employee is a chef working for a restaurant of the employer. Employees do not show up for work on certain days. After being threatened not to come to work, they rushed to file labor complaints. In defense, the employer claimed that the employee had given up his job. Solution: Employees didn't give up their jobs. Employers are being held accountable. “In this case, the records show that [employee] immediately filed a complaint with [employer] to protest their alleged wrongful dismissal. Since its filing did not match [employer’s] allegations of abandonment of work, the only logical conclusion is that [employee ] with no intention of giving up work.
Tegimenta Chemical Phils. v Oco (2013)G.R. No. 175369, Feb. 27, 2013) The employee is a materials controller. Due to her pregnancy, she had numerous absences and tardies. The boss suggested that she go on vacation. When she returned from her pregnancy, she was told to no longer report to the office, effective that day. She immediately filed a labor lawsuit for wrongful dismissal. In defense, employers claim that employees have given up their jobs. Solution: Employees didn't give up their jobs. Employers are being held accountable. The employee's absence from work "has been accepted by the company as a result of pregnancy complications. In fact, [the owner] himself provided the leave to [the employee]. Therefore, given that the latter's absences were justified, these absences cannot be regarded as her Antecedents to the conclusion that work has been abandoned. The burden of proof is on the company] to prove that the employee willfully and unreasonably refused to resume the latter's employment without intent to return." In this case, the [employer] "failed to discharge its burden of proof [Employee] courts have unanimously found that she continued to work after her leave and that her hours were cut off when she was explicitly told not to come in. These courts even noted that she called the office to follow up on her identity; when Upon learning that she would be fired, she immediately filed a lawsuit for wrongful dismissal. Clearly, her actions did not constitute a waiver, but implied that she had an interest in continuing to work." She intended to leave her job. She was simply exercising her right of option under section 279 of the Labor Code, which entitles her to reinstatement and arrears of wages or payment of severance pay. "
Demex Rattancraft, Inc. v. LeronG.R. No. 204288, November 8, 2017 The employee is a weaver for the employer, a manufacturer of handmade rattan products. He was fired by the company's foreman and personnel manager. Both accused him of "fomenting a campaign to oust [the foreman]. Before [the employee] was fired, he received a memo stating that a dining chair he had previously woven for export to Japan had been rejected. To this end, the company said No longer using his services. The company terminated the employee’s service on grounds of abandonment because the employee did not show up for work. Resolution: The employee did not abandon his job. The employer was held accountable. [Employer] “pointed out [employee]’s absence, non-compliance with return to work notices , and his so-called behavior of crumpling the first rework notice as indicators these behaviors still fail to convincingly demonstrate [the employee's] clear and unequivocal intent to terminate the employment relationship. "The employee" filed a wrongful dismissal lawsuit against [employer]... the day after he was unceremoniously fired by his superiors...[employer] denies that [employee] fired arbitrary and claims that [ The employee] gave up his job... The "employer" narrative implies that [the employee] filed a wrongful dismissal complaint in absentia after his first day on the job, which is illogical and has no clear intent to leave. [The employee also pursued a case of wrongful dismissal following an unbiased dismissal, citing improper venue. ] The employee’s “failure to comply with the return to work notice and his alleged behavior of crumpling the first return to work notice was ambiguous and did not show a clear intention to terminate the employment relationship. After being treated unfairly, he was rightfully disappointed and The resulting tension could explain the employee's reluctance to report it immediately. If anything, his impulsiveness could only reflect a grievance, not his desire to quit his job entirely."
Tan Brothers Corporation 诉 EscuderoG.R. No. 188711, July 8, 2013 The employee is a bookkeeper for the employer, a real estate company. She claims her monthly salary was not paid on time. After the company's office building was renovated, her office was rented out, and she was no longer assigned tasks. Due to the financial situation, she was forced to stop going to work. As a result, she filed a wrongful dismissal complaint. In defense, the employer claimed she was being paid properly and had relinquished her job when she stopped reporting. Solution: The employee did not give up his job. Employers are being held accountable. "Given that [the employee] was paid irregularly beginning in July 2003 but continued to show up for work, we found that her failure to do so later due to [the employer's] failure to pay her in May 2004 was hardly an indication of her intention to give up her job. In fact, mere absence from work or absence from work, even after the notice to return to work has been served, is not sufficient to constitute a renunciation of the employer's belief that the employee illegally seized the company's typewriter and took the company's pay slips, vouchers and other materials, indicating that she intends to cut off both parties. Employer-employee relationship of .Document. Due to unsubstantiated allegations, no more, not tantamount to guilt, CA rightly ignores [employee's] presumed violations, [employer] only on September 6, 2004 or In submitting the complaint status.”
Protective Maximum Security Agency, Inc. v. FuentesG.R. Number 169303, February 11, 2015 The employee is a security guard for the employer, a security services company. He was dispatched to a security checkpoint. Some time later, a group of armed men ransacked the post, took guns and personal items inside, and committed violence against the employee and other security guards. Security guards reported the case to the police station. Police filed criminal charges against the employee, who was detained by the police after witnesses pointed to the employee. While in custody, the employee claimed that he was beaten and tied up by his employer's agents. Ultimately, the case will be dismissed. The employee subsequently lodged a complaint on the grounds of wrongful dismissal. As a defense, the employer denied firing the employee and claimed that the employee gave up his job for failing to report to his immediate supervisor. Resolution: The employee did not give up work. Employers are held accountable. "There is no desertion in this case." The first element of desertion is that the employee is absent from work without a valid reason. [Employer] claimed that [employee] did not report to work immediately after his release from prison. He also failed to follow company procedures and report to his superiors. According to [employer], [employee]'s conduct constituted absence from work without good reason. Because of his detention and its adverse effects. The Court of Appeal ruled that [employer] had not contested allegations that [employee] suffered physical violence from its employees while in police custody. The Court of Appeal therefore accepted the report submitted by Inspector Escartin, which stated that [the employee] was "so traumatized that he feared for his life and in fact requested to remain in police custody". The appeal further found that the defendant experienced intense fear, "manifested by the fact that he left the police custody only in the company of his mother." The first element of waiver does not hold because [the employee's] absence was legitimately justified." The second element is the presence of clear behavior that indicates the employee has no intention of returning to work. "[Employer] stated that he clearly intended to dissociate from [employer] because [employee] 'disappeared' and did not report to work immediately. "However, [employee] went to work after August 15, 2001 when when revoked. In addition, [employer] refused to return [employee] to work because [employer] believed that [employee] was a member of the NPA and had hired a replacement. "[Employee]'s conduct to go to work after clearing the charges against him shows that he has no intention of severing ties with his employer. He attempted to return to work after the complaint was dismissed so that [the employer] would not have any valid reason to deny him reinstatement. request.” Thus, [the employee] behaves as if he intends to serve the [employer]. The second element of the waiver was also not confirmed. "


What is the difference between AWOL and abandonment Philippines? ›

In cases of abandonment of work, the notice shall be served at the worker's last known address. In a valid abandonment, there is intent to quit the job, while in an Absence Without Leave (AWOL), there is no such desire.

How many days absent to be considered AWOL in the Philippines? ›

Effect of absences without approved leave. - - An official or an employee who is continuously absent without approved leave for at least thirty (30) working days shall be considered on absence without official leave (AWOL) and shall be separated from the service or dropped from the rolls without prior notice.

Can you terminate an employee for being AWOL? ›

Both AWOL and Abandonment are grounds for an employee's legal dismissal. However, for companies to do this, the employee must undergo due process. This involves these steps: Receiving a notice or warning.

What is a sample notice for AWOL? ›

_________] Dear [Mr./Ms. Last Name]:

The purpose of this letter is to notify you that your absence beginning at [time] on [day], [date] through [time] on [day], [date] is being charged as unauthorized leave.

What is abandonment of work in Philippine law? ›

To constitute abandonment, two elements must concur: [1] the failure to report for work or absence without valid or justifiable reason; and [2] a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts.

What case for abandonment in the Philippines? ›

Abandonment without justifiable cause for more than one (1) year is one of the grounds for legal separation under Article 55 of the Philippine Family Code. Yes, the phrase legal separation has been underscored and illustrated in bold font to prevent any confusion that it can be a ground for dissolution of marriage.

What is the policy on AWOL Philippines? ›

Mere absence is not sufficient. (Ibid.) Mere failure to report to work is insufficient to support a charge of abandonment. The employer must adduce clear evidence of the employee's “deliberate, unjustified refusal… to resume his [or her] employment,” which is manifested through the employee's overt acts.

Is AWOL illegal in Philippines? ›

Yes, you can Terminate for frequent tardiness and absences. Termination due to AWOL, Tardiness or Abandonment of Work is something every HR Personnel will handle during their career. So it's important to know the Philippine Labor Law on Tardiness, as well as the DOLE rules on Tardiness and Absence Without Leave.

Do you get paid for AWOL Philippines? ›

Is an employee whose employment has been terminated due to “Absence without Leave” (AWOL) entitled to Final Pay? Yes, an employee whose was Absent without Leave (AWOL) from their job is still entitled to Final Pay.

How many years can you get for AWOL? ›

For instance, being AWOL for less than three days can result in a maximum penalty of confinement for one month and forfeiture of two-thirds pay for one month. After 30 days or more, service members face dishonorable discharge, forfeiture of all pay and allowances, and a one-year confinement.

Which is better AWOL or termination? ›

Effects on Current Employment

Other forms of official termination entitle employees to termination pays, which are equivalent to at least a month's worth of salary for every year of service. Going AWOL automatically disqualifies you from enjoying the financial benefits of an official resignation.

How much time do you get for AWOL? ›

For absence over 3 days and up to 30 days, forfeiture of 2/3 of a month's pay for 6 months and 6 months confinement. For AWOL over 30 days, maximum punishment involves forfeiture of pay and allowances, dishonorable discharge, and 1 year confinement.

Is AWOL absent without official leave? ›

What is AWOL? Absence Without Leave: AWOL is a non-pay status that covers an absence from duty which has not been approved.

What to do if an employee is AWOL? ›

The first thing you should do if you have an AWOL employee is to try and make contact with them and determine the reason for their absence. Try not to jump to conclusions or assume the worst. Before moving straight to disciplinary action, give the employee a chance to explain themselves.

What to do if someone is AWOL from work? ›

Checking an employee is safe
  1. Try contacting the employee using their work contact details.
  2. Try contacting them using their personal contact details.
  3. Get in touch with the employee's emergency contact.
Mar 14, 2023

Is abandonment a criminal case in the Philippines? ›

The Penal Code is replete with provisions penalizing abandonment of children and other persons in danger. Articles 275 to 378 of the Penal Code punish various forms of abandonment or neglect.

What is Article 297 Philippines Code? ›

Article 297 of the Labor Code allows the termination of an employee for willful breach of the trust reposed in him by the employer. Trust is a very important word that takes years to build but only seconds to destroy. Some believe that trust, once lost, can never be regained.

What happens if you get AWOL? ›

Absence Without Leave, Unauthorized Absence, and Desertion

Also known as desertion, it is no light matter and can lead to serious consequences. If AWOL for more than 30 days, a warrant for your arrest can be issued, resulting in a possible federal arrest and conviction.

What is the defense of abandonment? ›

The Defenses of Abandonment and Withdrawal

Abandonment and withdrawal is an affirmative criminal defense that arises when a defendant asserts that he or she never completed, or was not involved in, a criminal act because he or she abandoned or withdrew from the act prior to it happening.

What are examples of abandonment in law? ›

The classic case of abandonment arises where one spouse simply leaves the marital abode without consent or justification. However, abandonment can also be established where one spouse forces another to be excluded, such as by changing the locks on the shared home.

What is the action of abandonment? ›

In law, abandonment is the relinquishment, giving up or renunciation of an interest, claim, privilege, possession, civil proceedings, appeal, or right, especially with the intent of never again resuming or reasserting it. Such intentional action may take the form of a discontinuance or a waiver.

How do you write an abandonment letter? ›

Dear [Employee Name]: As of the date of this letter, you have been absent from work since [date of last day of work or last day of approved leave]. Because your absence has not been approved, and we have not heard from you, we have determined that you have abandoned your position.

What type of law is AWOL? ›

Being absent or failing to report for duty without authorization is a violation of the Uniform Code of Military Justice (UCMJ). These violations can be referred to under many different names, including absence without leave (AWOL), unauthorized absence (UA) and desertion.

What do you do if an employee is absent from work without notice? ›

How Do You Deal With Unauthorised Absence? First, contact the absent employee and ask for their reason for absence. If the reason given is not justified, you should begin the disciplinary process to decide how to deal with the issue (verbal warning, written warning or dismissal of the employee).

How is AWOL punished? ›

Actual punishments can vary from nothing at all to General Court-Martial, which could include a sentence of dishonorable discharge (a felony level conviction) and also could include years of jail time.

What are the charges of AWOL? ›

It is also a common charge of discipline within the federal government. Note though that AWOL is not in and of itself discipline, although it may lead to discipline. A charge of AWOL can result in a reprimand, suspension, or even removal from the federal service. Being charged with AWOL is a serious matter.

Is AWOL the same as leave without pay? ›

Extended LWOP is a period of LWOP exceeding 30 calendar days. Absence without official leave (AWOL) is a period of absence without pay for which the employee did not obtain approval or for which a request for leave is denied.

Can my employer sue me for quitting without notice? ›

If an employee breaches a material term of their employment contract, you can sue them for any damages. For example, a contract might require an employee to give two weeks notice before quitting. If the employee then left without notice and you lost revenue as a result, you could pursue a claim against them.

What is the longest time AWOL? ›

— A Florida man who went AWOL from the U.S. Air Force and spent 45 years on the lam has returned home after serving a 30-day sentence.

Does AWOL show up on a background check? ›

If you're AWOL and seeking employment, a military warrant doesn't always show on an employment background check. However, after 30 days, a desertion will show up. If there is a deserter warrant out for your arrest, even if your AWOL status doesn't show up on a background check, it doesn't mean that you're in the clear.

What is the difference between desertion and AWOL? ›

Desertion is the abandonment of a military duty or post without permission (a pass, liberty or leave) and is done with the intention of not returning. This contrasts with unauthorized absence (UA) or absence without leave (AWOL /ˈeɪwɒl/), which are temporary forms of absence.

Is immediate resignation AWOL? ›

An employee who immediately leaves may be tagged as "Absent without Leave" (AWOL) and employment would be terminated.

Is AWOL an insubordination? ›

refusing to do work ('insubordination') being absent without permission (some people call it absent without leave or 'awol')

Is going AWOL a misdemeanor? ›

Article 86 covers AWOL in the Uniform Code of Military Justice (UCMJ). This Article is considered a punitive Article, so there is an expectation that some punishment follows being AWOL. AWOL is a misdemeanor, while Desertion is a federal offense.

What is the difference between AWOL and Mia? ›

Missing in Action (MIA) Status: "Missing" is a casualty status, described by United States Code, that provides for missing members of the Military Service. Excluded are personnel who are absent-without-leave (AWOL), deserters, or dropped-from-the-rolls.

What article is absence without leave? ›

Article 86 -- Absence without leave. (3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct." b.

Can you report someone who is AWOL? ›

If you believe you know the whereabouts of someone who is AWOL or has deserted, you can report them to the individual service's Deserter Information Point, who will then determine whether or not the person is in desertion or AWOL status and take appropriate action.

What happens if you just don't turn up to work? ›

Unauthorised absence is misconduct and can lead to disciplinary action. However, there is a process that employers should follow before resorting to disciplinary action. Read on to discover how to deal with an employee who fails to turn up to work, and when disciplinary action might be appropriate.

What happens when an employee does not show up for work? ›

In some businesses, a zero tolerance policy is upheld, where one instance of not showing up for work can lead to termination immediately. Others may implement a “3-strike” process, where employees receive a written warning for not showing up to work at the first instance.

Does AWOL mean absent without leave? ›

Absence (voluntary or involuntary) without permission for five consecutive work days. Absence without leave (AWOL) for five consecutive days, whether voluntary or involuntary, is considered an automatic resignation from State service as of the last day the employee worked.

How long are you in jail for AWOL? ›

For instance, being AWOL for less than three days can result in a maximum penalty of confinement for one month and forfeiture of two-thirds pay for one month. After 30 days or more, service members face dishonorable discharge, forfeiture of all pay and allowances, and a one-year confinement.

What are the rules for AWOL? ›

AWOL means that you are absent from work without your employer's permission – it's an unexecuted absence. The length of the absence doesn't matter. You can be AWOL if you show up an hour late or if you don't come to work for a week. Employees may be charged with AWOL in many circumstances.

What is the safe haven law in the Philippines? ›

Senate Bill 1584, or the proposed “Newborn Infant Safe Haven Act,” seeks to repeal Article 276 of the RPC that penalizes parents who abandon their newborns or child below seven years of age with arrest and fines. “Albeit an offense punishable by law, it does not seem to deter the rising incidence of infant abandonment.

How long can a case be dismissed in the Philippines? ›

However, if the penalty for the offense exceeds six years then the provisionally dismissed criminal case can be revived within two years. After the lapse of the said periods without the case being revived the dismissal will become permanent (Section 8, Rule 117, Rules on Criminal Procedure).

How serious is AWOL? ›

Absence Without Leave, Unauthorized Absence, and Desertion

Also known as desertion, it is no light matter and can lead to serious consequences. If AWOL for more than 30 days, a warrant for your arrest can be issued, resulting in a possible federal arrest and conviction.

Do you get paid on AWOL? ›

Absence Without Leave: AWOL is a non-pay status that covers an absence from duty which has not been approved. Why Address AWOL?


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