I went AWOL. Can my employer just consider me resigned and keep my last pay?

Why

AWOL is a company term, not a legal one. The Labor Code does not use it. What matters legally is whether your absence amounts to a just cause under Article 297, which in practice means either gross and habitual neglect of duties or abandonment of work, the latter being treated by the courts as a form of neglect.

Abandonment has two elements and the second is the one employers usually cannot prove. The first is failure to report for work or absence without valid or justifiable reason. The second is a clear intention to sever the employer-employee relationship, shown by some overt act. The Supreme Court has been consistent that mere absence or failure to report, even for a stretch of time, is not enough, and that intent to abandon is the more determinative factor. Being sick, being unable to travel, being on an unapproved but genuine emergency, or simply being afraid to return after a confrontation all cut against a finding of intent.

One fact is close to fatal to an employer's abandonment defence: filing a complaint for illegal dismissal, particularly one that prays for reinstatement, is inconsistent with an intention to abandon. An employee who wants the job back is not an employee who walked away from it.

Even where abandonment is real, the employer cannot skip procedure. The twin-notice rule applies: a first written notice specifying the acts or omissions and giving you a reasonable opportunity to explain, and, after considering your explanation, a second written notice of the decision. Where you cannot be reached, the notices go to your last known address on record. A dismissal for a real cause carried out without these notices is still valid as a dismissal, but the employer is liable for nominal damages.

On money, the rules are simple and the practice is often not. Days you did not work are unpaid, and no-work-no-pay is legitimate. But wages already earned cannot be forfeited as a penalty. Article 116 makes it unlawful to withhold any amount from an employee's wages without the worker's consent, and deductions are limited to those the law allows, those you consented to in writing for a specific purpose, and those for a liability established after you were given a chance to explain. Final pay is due within 30 days of separation under DOLE Labor Advisory No. 06-20, and it includes your pro-rated 13th-month pay and the cash value of unused service incentive leave.

Your Certificate of Employment is not a bargaining chip either. It is due within three days of your request, and it is not conditional on clearance, on returned equipment, or on the dispute being settled. What it may state is the date of engagement, the date of separation, and the type of work, which is a narrower document than most people expect.

What to do

• Break the silence in writing, even if you are late. Explain the reason for the absence and say whether you intend to return. The record of intent is what the case turns on.
• Answer any notice to explain within the period given, in writing, and keep a receiving copy. Not answering is what turns a weak case against you into a strong one.
• Gather anything that shows a valid reason: medical certificates, messages to your supervisor, travel or family emergency records.
• Request your Certificate of Employment and a written breakdown of your final pay, and note the three-day and 30-day deadlines respectively.
• If you were dismissed without notices, or your earned pay is being held, file a Request for Assistance with DOLE under SEnA, or a complaint with the NLRC.

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