Tardiness is a common problem for Philippine HRs and it can be difficult for a business when it has employees who have timekeeping issues.  Frequent tardiness and absenteeism decreases productivity and can seriously hamper operations.

Research in America shows that employee tardiness costs businesses more than 3 billion each year in lost productivity. Imagine what impact tardiness in the Philippines could have if left unchecked, in a country not renowned for its timekeeping!

If 1 employee is 10 minutes late every working day for one week that is a loss of an hour a week.

If that employee is part of a team that works together they are affecting not just their own deadlines or productivity but their teams too.

These issues are grounds for Termination under certain conditions and fall under section b, Art 297 (formerly 282) of the Philippine Labor Code.

(b) Gross and Habitual Neglect by the employee of his duties;

In such cases, it is important for HR Personnel to build the case that the employees behavior is Habitual.

Do you have an employee that is always late?

It is best practice to ensure that your company has good HR policies in place and that these are communicated with employees as part of their induction when joining the company.

These policies can be collated together into an Employee Handbook.

Any policy covering timekeeping or tardiness should clearly state expectations around timekeeping. It should also lay out and follow the Twin Notice Rule for Just Cause Termination [G.R. No.165282].

• Notice to Explain (NTE) (Twin Notice Rule #1) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.
• Administrative Hearing Process where the employee may air his side. A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.
• Notice of Termination (Twin Notice Rule #2). A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

Always remember to speak to your company lawyer in case you have any clarifications about the Grounds for tardiness under Philippine Labor Law, and make sure that you have the correct documentation.

As an HR Personnel your role will be to keep an accurate record of the instances of tardiness of any employees or cases where an employee was Absent Without Leave. You may be asked to discuss the issue with the employee to establish if there are any underlying causes.

But if your company has an employee who is frequently tardy or absent without leave, his Manager might want to dismiss him.

There are Supreme Court cases in support of Terminating tardy employees and Termination due to AWOL.

One of the most blatant cases for tardiness and absenteeism happened in the case of a driver for a small printing business [G.R. No. 168120, Jan 25, 2012].

The driver was late 19 times out of the 47 days that he reported for work.

He was also absent 19 days out of 66 days of the first quarter of 2000. That’s almost 1 working month of being Absent Without Leave!

The frequent tardiness and absences of the company’s sole driver caused the company great difficulty.

In addition to the tardiness and being AWOL he was the only driver employed by the business. His tardiness and absenteeism delayed deliveries and the pick-up of supplies and resulted in a significant impact on the business.

The employee received several warnings about his tardiness and also met with Management to discuss his timekeeping issues. He was eventually issued a Notice of Termination.

The employee went to DOLE with a claim for Illegal Dismissal but DOLE dismissed his complaint for Lack of Merit. The employee then filed at the Court of Appeals for Grave Abuse of Discretion and won his case.

The case went on to the Supreme court due to the differing judgements. When the case reached the Supreme Court the court classified his tardiness and absences as Habitual and upheld his dismissal under Philippine Labor Law.

Whilst this was eventually a good outcome for the company, responding to a DOLE complaint or case and then Court cases takes both time and money.

In this case the sole proprietorship followed due process set out in the Philippine Labor Code. They did as much as they could to try to come to an agreement with the driver, but he remained steadfastly adamant in his behavior.

If your employee has been AWOL only once, firing shouldn’t be your first option.

Yes, it can certainly be disappointing when the person who is Absent Without Leave is a new employee. Our immediate thoughts might be “don’t you want to create the best impression in your first few months in the job?!”

But it may indicate there is a need for more focus to be given on covering the issues of Timekeeping, Tardiness, Absenteeism and being Absent Without Leave with the employee.

Some companies ask their new employees to sign a document to say that they have read and understood the company’s Employee Handbook or Policies. They even break these down as a tickbox list for each employee policy or subject.

If the employee has been Absent Without Leave several times however, you might start considering the Termination due to AWOL route.

Do you have an employee who is frequently absent?

In the Japos vs. FarmCoop [G.R. 208000, Jul 26, 2017] case, the Court upheld the termination. The employee had been absent on 6 different occasions and had been issued several Written Warnings about his absenteeism.

The Court assessed that the company had followed due process under Philippine Labor Law. The Court also quoted the company’s Policy on Absenteeism and the Employee’s Record documentation that it was presented with.

Frequent absenteeism can hurt your business.

The employees Termination for Absenteeism was very clear in this case.

The business was able to evidence to the Court that they had a good employee policy in place, their Employee Record documentation was in order and they followed due process under the Philippine Labor Code.

As a HR Personnel it is prudent to carry out your duties diligently.

If your Policies are in place, you maintain up-to-date and accurate Employee Records and you ensure you are following due process and the Philippine Labor Law, you will be easily able to explain situations or reasoning to your employee and best represent Management.

Abandonment and Absence Without Leave (AWOL) can sometimes be confused with each other.

But they are different things and have they have different effects. If you are considering employee Termination for Abandonment of Work it is important to understand the difference.

Absence Without Leave (AWOL) is when an employee is absent and has not followed internal company guidelines on requesting leave.

An employee can face Termination for being Absent Without Leave but it is not the same as Abandonment of Work!

Whilst an employee going AWOL is not Abandonment of Work, it may lead to Abandonment.

In the eyes of Philippine Labor Law, Abandonment must be composed of 2 instances for it to be claimed:

• the failure to report for work or absence without valid or justifiable reason, and
• 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. [R. 218384, Jul 3, 2017]

So, as an HR Personnel how do you prove the second requirement?

In the case of Agabon vs. NLRC [G.R. 158693, Nov 17, 2004] the company was able to evidence to the court that they had requested 2 employees to return to work. The 2 employees did not return to work at the company because they were already working for another company.

Needless to say, the 2 employees request for a ruling of Illegal Dismissal was denied by the court.

Once again, ordered and complete Employee Records files won the day for the company.

You must try a range of mediums to contact an employee where you suspect Abandonment of Work.

To evidence Abandonment of Work as a ground for Termination, you will have to try to contact your employee several times and through several different mediums.

This may be by letter mailed to their last known address (recorded/signed for), by email, by SMS, by telephone or by any employee communication channels that you have in place (Slack, Microsoft Teams, Zoom, WhatsApp etc.).

As I have said throughout this article it is vital that you keep a log of the mediums that you used to communicate with the employee, along with the date and time.

If your attempts are unsuccessful or ignored by the employee, you have clearly shown that the employee has no intention of returning to work and can substantiate that when proceeding with Termination for Abandonment of Work.

For Just Cause, there is the Twin Notice Rule:

• Notice to Explain (Twin Notice Rule #1)
• Administrative Hearing Process where the employee may air his side
• Notice of Termination (Twin Notice Rule #2)

The Just Cause process is pretty clearly laid out in my 2022 Guide to Terminating Regularized Employees for the Philippine HR and you can refer to this for clarification.

It is worth noting that you should always consult with your company lawyer when you consider Termination due to AWOL, Tardiness or Abandonment so that you are properly guided, particularly for the more complex cases.

Atty. Francesco C. Britanico, FCB Law Firm
Lawyers in the Philippines