What will I do if a missing employee returns months later? Does this constitute abandonment? What are his legal entitlements?
Dealing with a missing employee
Letting go of an employee is a considerable task for every employer. The management has to deal with several processes that come with resignation. From requiring exit documents and clearances that the employee has to submit; then ensuring that the employee receives his legal entitlements; until looking for a capable replacement and undertaking a turnover period just to get a smooth transition of tasks.
Emotions further compound the difficulty of the task especially when the employer and employee had a harmonious working relationship and cultivated a good professional bond.
But how about if the employee suddenly went missing? In common terms, the employee went AWOL.
The unfortunate employee might have committed an infraction at work and chose to escape, or maybe he just left for no apparent reason.
A missing employee is an employer’s bane which may lead to disaster. Instead of bidding the employee well wishes to a new career path ahead, the employer faces a problem, seeking answers for this sudden disappearance and scrambling to remedy its impact on his business operations.
But wait. To add insult to injury, after months of absence, this employee miraculously comes back.
In this article, we help provide legal information for the employer to deal with this situation. This uncovers the steps the employer can take in a situation where the absent employee reappears one day and comes knocking before his door.
Sit down and talk
The most prudent step for the employer is to talk to his employee and ask for the cause of the disappearance. This will help the employer understand the situation of his employee, if acceptable. For all employer knows, the employee might have had serious and justifiable reasons for immediately leaving. Perhaps there are health issues, or maybe threats to his life, that require instant action.
This is for the employer’s own benefit as well. In doing so, he avoids, if not anticipate, possible legal actions the employee may take in the event the employer pushes him away.
The reasonableness of the employer’s subsequent steps and actions will be measured against his full awareness and understanding of the whole circumstances. An eventual issue of due process may turn out to depend upon the openness of the employer to listen to his employee’s reasons.
Process the violation
After talking with the employee, the employer may now process the violation committed by the employee. Of course, the employer may let this pass and accept once more a remorseful employee. It is within his discretion whether to punish or not his employee.
In his further consideration, the employer may look at the company policies to determine a possible liability of the employee.
An employee’s instant and prolonged disappearance from work, without informing his employer, is a violation of the Labor Code. This constitutes abandonment, a form of neglect of duty.
Dismissal based on this ground is possible.
Article 297. Termination by employer. An employer may terminate an employment for any of the following causes:
b. Gross and habitual neglect by the employee of his duties;
The Supreme Court explained that “abandonment is the deliberate and unjustified refusal of an employee to resume his employment.” Moreover, mere absence is not in itself constitutive of abandonment for legal purposes. The Court further said:
To constitute abandonment, however, there must be a clear and deliberate intent to discontinue one’s employment without any intention of returning. In this regard, two elements must concur: (1) 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. (Tan Brothers Corp. v. Escudero, G.R. No. 188711, July 8, 2013)
This legal standard demands that the absence must be accompanied by overt acts manifesting the employee’s intention to cease working or sever his employment. The burden of proof lies with the employer to show the deliberate and unjustified refusal of the employee to resume his employment without any intention of returning.
Due Process
If the employer chooses to punish his erring employee on the ground of neglect of duty, he must still comply with the demands of due process. This simply means the opportunity to hear the employee’s side before imposing the appropriate penalty.
In abandonment cases, due process requires the service of two (2) notices. The first notice is one directing the employee to explain his side. He must offer reasons to prevent a charge that he abandoned his job. The second notice informs the employee of the employer’s decision to dismiss him on the ground of abandonment.
The penalty, which the employer may impose upon the employee, should at all times be reasonable. Company policies may provide for less severe penalties such as reprimand or suspension. This will depend on the underlying circumstances of the situation and the severity of the infraction. The employer may not resort to the extreme penalty of termination of employment especially if the employee’s reasons are acceptable.
Entitlements
The employer should finally settle the legal entitlements of his employee computed until the time he is considered to have abandoned his work. These include unpaid salaries as well as unpaid benefits such as overtime pay, premium pay for holidays, 13th-month pay, cost of living allowance, and the value of accrued leaves if there are any.
As a general rule, separation pay is not available to a validly dismissed employee due to abandonment. Separation pay is available only when the termination of employment is not due to the employee’s fault.
Separation pay is warranted when the cause for termination is not attributable to the employee’s fault [xxx] as well as in cases of illegal dismissal where reinstatement is no longer feasible.. On the other hand, an employee dismissed for any of the just causes enumerated under Article 297 of the same Code, being causes attributable to the employee’s fault, is not, as a general rule, entitled to separation pay. The non-grant of such right to separation pay is premised on the reason that an erring employee should not benefit from their wrongful acts.(Claudia’s Kitchen Inc. v. Tanguin, G.R. No. G.R. No. 221096, June 28, 2017)
However, if an existing collective bargaining agreement or prevailing company practice allows for payment of separation pay to a validly dismissed employee, the employee becomes entitled to it.
Recap
Again, if a missing employee comes back, the employer must do the following steps:
- Talk to the employee to get his reasons for the sudden disappearance.
- Process a possible violation of company policies or relevant labor laws.
- Consider the severity of the infraction and pertinent circumstances in imposing the penalty.
- If the employer decides to terminate the employee after observing due process, give the legal entitlements due to the employee.
