Dear Attorney,

I would like to ask for your legal advice regarding an employee who has been absent without official leave (AWOL). Is an employee who went AWOL still entitled to receive their 13th month pay? The employee has not resigned, but they have not reported to work for several weeks. Could you clarify the legal position on this matter?

Thank you.

Sincerely,
Concerned Employer

Insights

Under Philippine labor laws, the entitlement to the 13th month pay is governed by Presidential Decree No. 851, which mandates that all rank-and-file employees, regardless of their employment status, are entitled to receive a 13th month pay as long as they have worked for at least one month within the calendar year.

In the context of an employee who has gone AWOL (Absent Without Official Leave), the general principle is that the employee’s 13th month pay will be prorated based on the actual length of service rendered during the year. As such, the fact that an employee is AWOL does not outrightly disqualify them from receiving a 13th month pay. What matters is the total number of days or months they worked during the year prior to their unauthorized leave.

Key Legal Considerations:

Prorated Payment: If the AWOL employee rendered work during the calendar year, they are still entitled to the 13th month pay on a prorated basis. For example, if they worked for only six months before going AWOL, they are entitled to 50% of the 13th month pay.
Basis for Denial: If an employer wishes to deny the payment, they must prove that the employee has not rendered any substantial work during the calendar year in question. Mere AWOL status is not sufficient grounds to forfeit the benefit of the 13th month pay, unless it results in zero work days within the relevant year.
Termination of Employment: If the employee was eventually terminated due to their AWOL status, they would still be entitled to a prorated 13th month pay based on the period they actually worked before their dismissal. The law is clear that entitlement to 13th month pay does not depend on whether the employee was dismissed or resigned, but on the length of service during the calendar year.
Regular Employees vs. Contractual Employees: It is also worth noting that the law applies to all rank-and-file employees, whether regular, contractual, or probationary. Therefore, even if the AWOL employee is a probationary or contractual worker, they remain entitled to a prorated 13th month pay for the portion of the year they were employed.

Conclusion: In your case, if the employee who went AWOL has rendered at least one month of service within the calendar year, they are entitled to a prorated 13th month pay based on the actual months worked. It is essential to compute this based on their time of service before going AWOL. However, if the employee did not work any portion of the year, they would not be entitled to any 13th month pay.