AWOL, Constructive Dismissal, and Abandonment
AWOL is one of the common incidents involving an employee for various reasons:
- He committed an offense and feels so guilty he does not want to show up
- He got offended by his superior and decided to consult a lawyer
- He went to the NLRC to file a constructive dismissal case
As to numbers 2 and 3, what should the employer do?
The best policy of the employer should be to send a Notice to Explain (NTE) with Return to Work directive the moment and employee is absent without leave (AWOL). This way, the employer is in control of the situation.
HR Forms, Notices and Contracts by Atty. Villanueva
If the employee has gone off to consult a lawyer and decided to file a case, the employer cannot use the defense of abandonment. It’s not because it is a prohibited defense but due to the fact that the courts do not normally give credence to it. The view is that if the employee abandoned his job he would not have filed a case.
The same situation can arise under number 3. If the employee already filed the constructive dismissal case the defense of abandonment is an almost futile theory. These are among the situations where the law is tilted in a way that favors employee. This is the reason why in any situation where the employee goes absent without leave an NTE with RTW should always be issued.
The employee can always justify the reason for such absence anyway. Although an employee who has no plans of filing any case but just simply went on absence without leave may feel bad about receiving a memo. But this policy should be discussed at the point of hiring and in employee orientation so the action of employer in such case would already be expected and not viewed as “power tripping”.
In case the employee indeed filed a case, the employer can invoke the defense of abandonment as it has an evidence that it tried to search for its employee. The claim of illegal dismissal would be hard to believe since a company that terminated an employee would not direct him to report for work.
Related: Sample Notice of Dismissal for AWOL
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