LEGAL OPINION

Abandonment and absence without leave (AWOL) can sometimes be confused with each
other. But they are different things and have different effects. Absence without leave (AWOL) is
when an employee is absent and has not followed internal company guidelines on leave. AWOL
is not abandonment, although it may lead to abandonment. In the eyes of the law, abandonment
must be composed of 2 instances for it to be claimed:

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. [GR. 218384, Jul 3, 2017]

How do you prove the second requirement?

Well, in Agabon vs. NLRC [G.R. 158693, Nov 17, 2004] when the company requested 2
employees to return to work they did not because they were already working for another company.
Needless to say, their request for illegal dismissal was denied.

For abandonment to work as a ground, you’ll have to try to contact your employee several times
and through several different mediums. Keep a log of the times you’ve tried. If these attempts are
unsuccessful, you’ve clearly shown that the employee has no intention of returning to work and
can substantiate that.

Process
The right process to terminate an employee
You will need to go through the due process outlined for just causes by the labor code.

For just causes, there is the twin notice rule (art. 292 b of the labor code):
1. Notice to Explain
2. Hearing where the employee may air his side
3. Notice of Termination

4. The process is pretty clearly laid out in the 2018 Guide to Terminating
Regularized Employees for the Philippine HR and can be referred to for
clarification.
5. Remember to always consult your company lawyer when you consider
termination so that you are properly guided in more complex cases.
 CONCEPT OF ABANDONMENT

What is abandonment?
Abandonment is the deliberate and unjustified refusal of an employee to resume his employment
(DUP Sound Phils. v. Court of Appeals, G.R. 168317, 21 November, 2011, 660 SCRA 461, 470).
In other words, the employee has decided that he’s no longer going back, and there’s nothing you
can do about it. He does not bother to go thru the regular procedures for leaving employment
(resignation, filing for extended leave, etc.), he just decides on his own that he no longer wants to
work for you. He has, for lack of a better term, decided to abandon his employment. Add to that,
abandonment’s most immediate manifestation is being absent without leave or AWOL.

When can abandonment happen?

A person can choose to abandon his work at any time. Since it is a state or mind or a
condition, abandonment can be present at any point of the offense chart, whether it is the 1st, 2nd,
3rd or 4th time he has been absent without leave. All you have to prove is that there is no longer
any intention to come back to work. Once you prove the employee’s intention to no longer go
back, then it becomes “a ground for termination under the labor code.

What’s the consequence of abandonment?

It constitutes neglect of duty and is a just cause for termination of employment
under paragraph (b) of Article 282 of the Labor Code” (CRC Agricultural Trading v.
National Labor Relations Commission, G.R. No. 177664, 23 December 2009, 609 SCRA
138,148). Once you prove that there is an intention to abandon, the violation crosses
over from being a mere violation of work rules into a ground for termination under
the labor code itself.

Who’s job is it to prove abandonment, Attorney?

Under the law, it’s the employer’s job to prove the intention to abandon (Ledesma, Jr. v.
National Labor Relations Commission, G.R. No. 174585, October 19, 2007, 537 SCRA 358). This
is why you should know how to gather the right pieces of evidence to prove abandonment.