Letter to Attorney: Concern Regarding Habitual Absenteeism

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Dear Attorney,

I hope this letter finds you well. I am writing to seek your advice on an ongoing issue we are currently facing with one of our workers. The concern pertains to habitual absenteeism. This employee has been frequently absent without justifiable reasons, and their repeated absences have started to affect workplace operations.

We would like to request your guidance on how to properly address this issue within the bounds of the law, while also ensuring that the employee's rights are respected throughout the process. Specifically, we are seeking advice on the following aspects:

1. What constitutes habitual absenteeism under Philippine labor law?
2. What are the legal steps that should be followed in addressing this issue, including any procedural requirements for termination, if applicable?
3. How can we ensure compliance with labor regulations to avoid any legal repercussions from both the employee and labor authorities?

Your prompt assistance and expertise on this matter would be greatly appreciated.

Sincerely,
HR Officer

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Understanding Habitual Absenteeism under Philippine Labor Law: A Comprehensive Legal Discussion

Habitual absenteeism, often referred to as excessive absenteeism, is a recurring issue in employment relationships, especially when an employee’s repeated failure to attend work disrupts business operations. In the Philippines, labor laws are designed to protect both the employer’s interests in maintaining efficient operations and the employee’s rights to due process and fair treatment. In addressing habitual absenteeism, employers must carefully follow the legal framework set forth by the Labor Code of the Philippines and pertinent rulings by labor tribunals to avoid unlawful dismissal and potential litigation.

Defining Habitual Absenteeism under Philippine Law

Absenteeism refers to an employee’s failure to report for work when they are expected to be present. While occasional absences due to sickness, personal reasons, or emergency situations are generally acceptable and covered by labor policies such as sick leave and emergency leave, habitual absenteeism implies a repeated pattern of absences without valid justification.

The term “habitual absenteeism” is not explicitly defined under the Labor Code of the Philippines, but case law and the rulings of the National Labor Relations Commission (NLRC) and the Supreme Court provide sufficient guidelines for employers. Habitual absenteeism typically refers to an excessive and repeated failure to report to work over a period of time, without justifiable cause, to the extent that it affects the performance and efficiency of the organization. The habitual nature of the absenteeism must be distinguished from isolated or occasional absences, which are usually treated as minor infractions.

Grounds for Dismissal Based on Habitual Absenteeism

The Labor Code of the Philippines allows for the dismissal of an employee on the grounds of habitual absenteeism under Article 297 (formerly Article 282), which outlines just causes for termination, including gross and habitual neglect of duties. Habitual absenteeism falls under this category when an employee’s repeated absences demonstrate a deliberate and wanton disregard for their responsibilities.

In the case of Philippine Long Distance Telephone Company v. Leandro Tolentino, the Supreme Court upheld the dismissal of an employee for habitual absenteeism when it was proven that the employee had incurred numerous absences within a short span of time. The Court emphasized that repeated absenteeism, particularly when it disrupts the employer’s operations and when the absences are not justified by medical or emergency reasons, can be a valid ground for termination.

The following elements are typically considered in determining whether habitual absenteeism is a valid ground for dismissal:

1. Frequency and Duration of Absences: There must be a repeated pattern of absences that occur within a defined period of time (e.g., within six months or a year). The absences should be frequent enough to disrupt normal business operations.
2. Lack of Justification: The absences must be unjustified or without valid reason. Absences that are covered by medical certificates, approved leave, or emergencies are typically not counted towards habitual absenteeism.
3. Adverse Impact on Operations: The absences must have a detrimental effect on the employer’s operations or the employee’s ability to fulfill their work obligations. Employers are often required to show that the absenteeism has led to delays, decreased productivity, or other negative outcomes.

Procedural Due Process in Cases of Habitual Absenteeism

Under Philippine labor law, it is not enough for an employer to claim that an employee’s absenteeism is habitual and detrimental to the business. The employee must be afforded due process before any disciplinary action, particularly dismissal, can be imposed. This involves both substantive due process (there must be a valid ground for dismissal) and procedural due process (the proper procedure must be followed).

1. Notice to Explain (First Notice): Before an employee can be dismissed for habitual absenteeism, the employer is required to issue a notice to explain or a show-cause memorandum. This document should clearly state the specific absences that are being questioned, the dates of the absences, and why the employer considers them as part of habitual absenteeism. The notice must give the employee an opportunity to explain their side and present any justifications they may have for their absences.

2. Hearing or Conference: After receiving the employee’s written explanation, the employer may hold a hearing or a conference to allow the employee to present their side further. This is especially important if there are factual disputes regarding the absences or if the employee has presented medical certificates or other documents to justify their absences.

3. Decision (Second Notice): After considering the employee’s explanation and any evidence presented, the employer must then issue a second notice, which will either inform the employee of their dismissal (if the employer finds the explanation insufficient) or state that no disciplinary action will be taken (if the explanation is found to be justified). If the employer decides to terminate the employee, the notice must include the specific reasons for dismissal, particularly citing habitual absenteeism as the ground.

Failure to follow the due process requirements can result in a finding of illegal dismissal, even if the employee was indeed habitually absent. In cases of illegal dismissal, the employer may be required to pay back wages, separation pay, and other damages to the employee.

Legal Recourse for Employees

If an employee believes that they were unfairly dismissed on the grounds of habitual absenteeism, they have the right to file a complaint for illegal dismissal before the NLRC. The burden of proof lies with the employer to show that the dismissal was based on a valid ground and that the due process requirements were followed.

In Pascua v. Bankwise, Inc., the Supreme Court ruled in favor of the employee, finding that the employer failed to provide sufficient notice and opportunity to explain the absences. The Court reiterated the importance of following the twin requirements of notice and hearing before terminating an employee, regardless of the just cause claimed by the employer.

Alternatives to Dismissal: Progressive Discipline

Before terminating an employee for habitual absenteeism, employers are encouraged to explore alternative measures through progressive discipline. This approach allows for a graduated response to the employee’s infractions, starting with less severe penalties and escalating to dismissal only if the problem persists. Common forms of progressive discipline include:

1. Verbal Warnings: A supervisor may informally warn the employee that their attendance is becoming a problem and remind them of their responsibilities.
2. Written Warnings: If the absenteeism continues, the employer may issue a formal written warning, detailing the dates of the absences and the consequences of future infractions.
3. Suspension: For more serious or repeated absenteeism, the employer may impose a temporary suspension. This serves as a final warning before termination.

Employers must document each step in the progressive discipline process to establish a record of the employee’s behavior and the employer’s attempts to correct it.

Special Considerations for Protected Absences

Employers should be cautious in distinguishing habitual absenteeism from protected absences under Philippine law. Absences due to legitimate illness, maternity leave, paternity leave, or those covered by approved leave of absence policies should not be considered when determining habitual absenteeism.

In Interphil Laboratories, Inc. v. NLRC, the Supreme Court held that an employee’s absences due to legitimate illness, which were covered by medical certificates, could not be used as a basis for dismissal. Employers must carefully review the circumstances of each absence before categorizing it as part of habitual absenteeism.

Final Thoughts

Habitual absenteeism is a legitimate ground for dismissal in the Philippines, but employers must handle such cases with care to avoid violations of the employee’s rights. The proper legal grounds must be established, and the procedural requirements must be strictly observed. Employers are also encouraged to explore progressive discipline measures before resorting to termination. By understanding and adhering to the legal principles governing habitual absenteeism, employers can maintain a fair and legally compliant workplace, while employees are protected against unjust dismissal.