Dear PAO,
I was recently dismissed from work because of absence without official leave (AWOL). However, I was only absent for eight days because I got sick and was hospitalized. When I reported back to work, I was told that I could no longer return to work because I was on AWOL. They told me that my continued absence for more than a week was considered serious misconduct and abandonment of work, which are just causes for termination. May I still file a case for illegal dismissal despite committing AWOL?
Mauricio
Dear Mauricio,
Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty, hence, a just cause for termination of employment by the employer. For a valid finding of abandonment, these two factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second as the more determinative factor, which is manifested by overt acts from which it may be deduced that the employees has [sic] no more intention to work. The intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified. (Protective Maximum Security Agency, Inc. v. Fuentes, GR 169303, Feb. 11, 2015, Ponente: Senior Associate Justice Marvic Mario Victor Leonen)
Relative thereto, the onus probandi or burden of proving abandonment falls on the employer. If the employer fails to show proof that the absences incurred by the employee are tainted with malicious intent to sever his employment, the defense of abandonment cannot be given weight.
In your case, while your absence for eight days may have been unauthorized or lacked official permission, reporting back to work after getting better from your illness proves that you have no intention to discontinue your employment, and clearly demonstrates your willingness to resume your duties. In addition, the fact that you want to file a case for illegal dismissal reinforces the lack of intent on your part to sever your employment, notwithstanding your absences. Lastly, no person can foresee when an illness may happen; hence, no one can give prior notice when one will be absent due to sickness. Rather, employees may only file for sick leave after returning back to work or after the occurrence of the illness.
In the recent case of Carpio v. Green Era Biotech Corp. (GR 267217, Nov. 9, 2025), the Honorable Supreme Court, speaking through Associate Justice Maria Filomena Singh held that “mere absence from work, without more, will ordinarily fail to support a finding of abandonment of work, absent any overt act from the employee clearly showing that he or she intends to sever his or her employment.”
By summarily terminating your employment when you reported back for work, your employer also appears to have violated your right to procedural due process. Under the Labor Code, there must have been a twin-notice; your employer should have sent you a written notice informing you of your alleged violation for taking absences without official leave and giving you an opportunity to explain, and a second written notice of termination explaining the reason for such decision.
Therefore, prescinding from the foregoing, your employer’s unilateral declaration of your dismissal due to your continued absence, claiming serious misconduct and abandonment of work, lacks both substantive and procedural merit; hence, you may file a case for illegal dismissal against your employer.
We hope that we were able to answer your queries. This advice is solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
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
