Abandonment of Work and AWOL – Sample Notice to Explain for AWOLAtty Elvin
Abandonment of work is a form of neglect of duty; hence, a just cause for termination of employment under Article 297 [formerly Article 282] of the Labor Code. Get a copy of renumbered Labor Code here.
The post and sample form below are based on the book Human Resource Forms, Notices & Contracts Volume 2 by Atty. Villanueva. The citations were omitted in this post. You may refer to the book to see the citations of legal doctrines and principles.
To constitute abandonment, 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 act.
Absenteeism per se is not an overt act which would prove an unequivocal intent on the part of the employee to discontinue employment. Clear intention to sever employment relationship 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 shown by clear proof that it was deliberate and unjustified. Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts. 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.
The employer has the burden to prove abandonment The issue of whether the employee has abandoned his work is factual. The law does not enumerate what specific overt acts can be considered as strong evidence of the intention to sever the employer-employee relationship.
Failure of the employer to present attendance record even when this was readily available to it could only mean that had said evidence been produced, they would have negated the claim that respondent had been on AWOL.
Mere unexplained absence is not sufficient. It is the employer who has the burden of proof to show a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning. The employer should adduce proof of some overt act of the employee that clearly and unequivocally show his intention to abandon his post.
Employers have to prove a deliberate and unjustified refusal on the part of the employee to resume his employment and such refusal must be clearly shown.
Mere absence is not sufficient. It must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore.
An employee who had been absent for a period of one (1) year, without any valid notice or leave and not due to illness or disease, may be dismissed on the ground of abandonment. An employee whom the employer deems to have abandoned his work cannot be automatically terminated. Due process is required in order for the dismissal to be valid. Abandonment of work does not per se sever the employer-employee relationship. It is merely a form of neglect of duty, which is in turn a just cause for termination of employment.
The operative act that will ultimately put an end to this relationship is the dismissal of the employee after complying with the procedure prescribed by law. If the employer does not follow this procedure, there is illegal dismissal.
Due process in the case of abandonment means the service of two (2) notices to the employee, viz:
1. First notice directing the employee to explain why he should not be declared as having abandoned his job; and
2. Second notice to inform him of the employer’s decision to dismiss him on the ground of abandonment. 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. AWOL is more of violation of internal procedure of the company on notices required in the event of employee’s absence. While abandonment signifies a clear intention to cut the relationship with the employer.
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.
Below is the sample Form for AWOL.
To : Name of Employee
From : Human Resources Manager
Subject : Absent Without Leave or AWOL
Date : (Date of issuance of Notice)
The matter of your prolonged absence has been brought to our attention. In particular, it appears that you failed to report for work on ______ (date of absence) ___ to ___________.
Records show that your absence was not authorized under an approved leave application. In this regard, please be informed that unauthorized absence or absences without leave (AWOL) constitutes gross and habitual neglect of duties, which is a ground for termination under the Labor Code. On record, this is one of several instances of absences without leave which as of this date constitutes 11th instance and a total of twenty-four (24) days of unauthorized absences.
In view of the forgoing, you are hereby required to submit a written explanation to this office within five (5) days from receipt of this notice, stating why the Company should not terminate your employment.
Furthermore, you are invited to a conference on _________ (date) at ___________ (venue) where you shall be given the opportunity to express your side on the matter. You may be accompanied by your own counsel at the said conference if you wish to be assisted by one.
Your failure to submit your written explanation within the period provided shall be construed as a waiver of your right to be heard and the Company shall decide the matter on the basis of all records and evidence available to it.
Your compliance is strongly encouraged.
Name of Signatory