08 Sep AWOL vs. Abandonment: what’s the difference?
“I have a question for you Attorney. My employee is missing. He failed to appear for work for the last 3 days. He was supposed to be on duty. Can I terminate him for being AWOL?”
Questions like this make me realize how many of my clients and students encounter this issue. To help you guys out, I’m going to sort out how to deal with employees who suddenly go off the grid in this post.
You can terminate AWOL employees, right?
First off, let’s tackle the big question: “If an employee goes missing without any authorization from you, that could lead to his automatic termination, correct?” The answer isn’t that simple. Yes, he may be guilty of Absence without Leave (AWOL), but he may not be eligible for termination as of yet. You have to prove abandonment.
“Aren’t they the same Attorney? I mean, they do sound the same.” Nope. Here’s where they differ. AWOL is a violation of a procedure you set out as part of your management prerogative, while abandonment is a state of mind which you have to prove with evidence. And each leads to different consequences.
Let’s explain AWOL
For example, you state in your handbook that for all leaves and absences, employees have to fill out form number X3ZO2 (or whatever you call your forms at work), submit it to their supervisor for approval, send the form to HR for processing, and only if that is approved can they go on leave.
See what I did there? I set out certain pre-requisites that your employees have to go thru to avail of their leave benefits. If they go on leave without going thru the steps you laid out (as is your right as managers), then they commit a violation of the company rules.
“I get it now! So does this mean that they can be terminated at this point?” Not necessarily. If a client were to come to me with this situation, my next question would be, “So, what penalty do your rules provide for this violation?” If your rules were written well, you would have escalating penalties for violations (for articles on rule making, read my articles on policy drafting).
An example of an offense chart for AWOL would be:
AWOL OFFENSE CHART
- First offense: Written Warning
- Second offense: Suspension of 1-3 days.
- Third offense: Suspension of 5-10 days.
- Fourth offense: Suspension of 10-20 days to termination.
As you can see, you get to set your own terms for this. But, once you set your rules, you are expected to stick to them barring any other circumstance such as multiple offenses at the same time. So going back to the question, “Can I terminate him now?”, that would depend on where he is on the offense chart. If this is the 4th time or more that he has gone AWOL, then by all means, initiate termination proceedings. If this is his 1st to 3rd violation, then apply the corresponding penalties instead of termination.
To summarize, AWOL is an internal violation which leads to consequences which are dictated by your policies. It may or may not lead to termination depending on where they are on the offense chart that you have created. However, this changes when it is accompanied by abandonment, which automatically qualifies the employee for termination.
Let’s tackle the concept of abandonment
“Attorney, does this mean that even if this is his first time to be absent from work and it has been 3 months since we last saw him, we can’t terminate him? This is because you said that we should apply the offense chart we have and it says that the first offense is just a written warning, but he’s nowhere to be found! What do we do?” This is a great example to show the concept of abandonment, so let’s start here.
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.
I hope you see the difference here. AWOL is a violation of your internal rules and could only lead to termination if it has been committed multiple times and your chart says the last instance merits termination, while Abandonment is a condition which turns a violation into a ground for termination regardless of where it is on the offense chart. Let’s run thru a scenario to make sure you understand the concept:
Scenario: Your employee fails to report for work
Did he ask for authorization or did he follow your procedures to apply for leave?
- If Yes – then no issue. He’s on authorized leave. Let him enjoy his day.
- If No – then he may be guilty of Absence without Leave. Initiate disciplinary procedures.
Does this mean he can be terminated for abandonment?
- Not necessarily, unless he has shown thru overt acts that he no longer intends to come back (ex. he told you) or you have gathered evidence to show that there is an intent to abandon.