Employer Refusal to Issue Certificate of Employment for AWOL Employee

Below is a comprehensive discussion of the key legal principles, relevant regulations, and practical considerations concerning an employer’s refusal to issue a Certificate of Employment (COE) in the Philippines, specifically in cases where the employee went on absence without official leave (AWOL). This discussion is based on Philippine labor laws, Department of Labor and Employment (DOLE) issuances, and pertinent jurisprudence. It is intended for general informational purposes and should not be taken as legal advice.

1. Definition and Purpose of a Certificate of Employment

  1. What is a Certificate of Employment (COE)?
    A Certificate of Employment is a document issued by an employer to an employee (or former employee) upon request. It states the nature, period, and scope of the employee’s service, including dates of employment and the position(s) held. It essentially confirms the fact of employment but typically does not contain detailed assessments of performance or character, unless the employer chooses to include such information or where company policy dictates minimal commentary.

  2. Why is it important?

    • Job Applications: Prospective employers often require a COE to verify an applicant’s employment history.
    • Proof of Employment: A COE serves as a quick reference to a worker’s tenure and position.
    • Compliance: DOLE guidelines (e.g., Labor Advisory No. 06, Series of 2020) mandate the prompt issuance of a COE upon request.

2. Legal Basis for Issuing a Certificate of Employment

  1. Labor Advisory No. 06, Series of 2020 (DOLE)

    • Explicit Right to a COE: The Advisory clarifies that all employees—whether they resigned, were terminated for just cause, or ended employment for any other reason—are entitled to receive a Certificate of Employment upon request.
    • Timeline: Employers are required to issue the COE within three (3) days from the date of the employee’s request.

  2. Omnibus Rules Implementing the Labor Code
    While the Labor Code of the Philippines does not contain an explicit provision titled “Certificate of Employment,” its implementing rules and regulations provide guidance that has been further refined by DOLE issuances.

  3. Customary Practice and Jurisprudence

    • Philippine jurisprudence has recognized the employee’s right to a certificate of employment. The Supreme Court has consistently ruled that refusal to provide a COE—when requested—may constitute an act of bad faith or a violation of labor standards, especially if it prejudices the employee’s right to gain employment elsewhere.

3. The Right to a COE vs. Employer Refusal in AWOL Cases

  1. AWOL Defined

    • Meaning of AWOL: Absence Without Official Leave (AWOL) occurs when an employee stops reporting for work without notice and without securing prior approval or leave.
    • Consequences for the Employee: AWOL is often treated as a form of neglect of duty or a just cause for termination under Article 297 (formerly Article 282) of the Labor Code, depending on the employer’s disciplinary policies and the circumstances.

  2. Does AWOL Affect the Right to a COE?

    • General Rule: An employee’s right to a Certificate of Employment does not depend on the manner by which they were separated from the company. Whether the separation was due to resignation, termination for cause (including AWOL), or other reasons, the employer is still obligated to issue a COE upon request.
    • Employer’s Obligation: Even if the employee’s separation was unfavorable or involved misconduct (e.g., AWOL, serious breach of trust, etc.), the employer’s duty to issue the COE remains intact.

  3. Employer’s Option to Reflect Reason for Separation

    • An employer may include in the COE the reason for separation, such as “resigned,” “terminated for just cause,” or “separated due to AWOL.” However, the inclusion must be factual and not maliciously defamatory.
    • Many employers limit COEs to bare facts (period of employment and position). Nevertheless, the law does not expressly prohibit mentioning the reason for separation, provided it is truthful and objective.

4. Common Misconceptions About Refusing to Issue a COE

  1. Clearing Accountabilities vs. Issuance of COE

    • Some employers mistakenly believe they can withhold a COE if the employee has unpaid loans, unreturned property, or other accountabilities.
    • Key Point: A COE is a matter of right and must be issued irrespective of any pending clearance or unsettled obligations. Employers may, however, proceed with separate legal or administrative steps to enforce collection of obligations or recover property.

  2. Disciplinary Reasons

    • Another misconception is that an employer can refuse to issue a COE if the employee was terminated for cause, such as AWOL, insubordination, or misconduct.
    • Key Point: Disciplinary grounds for termination do not negate the employee’s right to a COE.

5. Potential Legal Consequences of Refusal

  1. Administrative Sanctions or Monetary Fines
    DOLE can impose administrative fines on employers who violate labor standards, including the requirement to issue a COE. In some instances, a complaint can be filed with the DOLE’s Regional Office to compel the employer to issue a COE.

  2. Litigation and Damages

    • If the employer’s refusal to issue a COE causes the employee to lose job opportunities or suffer other forms of damage, the employee may explore filing a labor complaint.
    • Depending on the facts, the employer’s refusal could be interpreted as bad faith, potentially entitling the employee to moral or nominal damages.

6. Steps an AWOL Employee Can Take if the Employer Refuses

  1. Formal Written Request

    • The employee should first make a written request (via email or letter) for a Certificate of Employment. This request triggers the employer’s three (3)-day obligation under Labor Advisory No. 06, Series of 2020.

  2. Follow-Up and Documentation

    • If the employer does not respond, it is prudent to follow up and keep evidence of communication (emails, letters, or text messages). This documentation can be crucial if the dispute escalates.

  3. Filing a Complaint with DOLE

    • If the employer still refuses or ignores the request, the employee can file a complaint at the DOLE Regional Office or hotline. DOLE can call the employer for a conference or issue an order directing the employer to comply.

  4. Consultation with a Lawyer / Labor Arbiter

    • In more complex cases—e.g., where the employee is also pursuing claims for illegal dismissal or final pay—a consultation with a labor law practitioner or going through the National Labor Relations Commission (NLRC) may be warranted.

7. Practical Tips for Employers and Employees

For Employers

  • Always Issue the COE: Comply with the three-day rule to avoid administrative sanctions.
  • Focus on Facts: If mentioning reasons for separation (AWOL or otherwise), ensure statements are accurate, factual, and devoid of malice.
  • Separate Clearance Process: Continue the clearance procedure for any accountabilities (e.g., property or loan) but do not hold the COE hostage to these issues.

For Employees

  • Request in Writing: To protect your rights, submit a formal, documented request for your COE.
  • Keep Records: Retain copies of all communications.
  • Know Your Rights: Familiarize yourself with DOLE issuances (Labor Advisory No. 06, Series of 2020) to understand the timeline and the employer’s obligation.
  • Seek Assistance if Necessary: If your employer refuses to issue the COE, contact the nearest DOLE office for guidance and to file a complaint if needed.

8. Summary

  • Entitlement: Under Philippine labor regulations and DOLE advisories, an employee—regardless of their manner of separation (resignation, end of contract, AWOL, or termination for cause)—has the right to request and receive a Certificate of Employment.
  • Obligation to Issue: The employer cannot refuse to issue a COE purely because an employee went AWOL or for any other disciplinary reason.
  • Contents and Accuracy: Employers may state facts regarding the employee’s tenure and the reason for separation, provided such statements are accurate and not defamatory.
  • Remedies: Employees denied a COE have recourse through the DOLE or, in more complex disputes, the NLRC, which can order the employer to provide the certificate and potentially hold the employer liable for damages or penalties.

Disclaimer

This article aims to provide general information on the topic of employer refusal to issue a Certificate of Employment, particularly in AWOL cases, in the Philippine setting. It does not constitute legal advice. For specific issues or disputes, consultation with a qualified labor attorney or the appropriate government agency (DOLE, NLRC) is strongly recommended.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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