Dear Attorney,

I hope this message finds you well. I write to you as a concerned employee who was recently terminated from my position due to excessive absences. My absences were caused by health issues, but I was not able to provide medical certificates because of financial constraints. I had been working with my employer for only six months before termination. My question is: am I entitled to receive separation pay under these circumstances?

I would greatly appreciate your guidance on this matter. Thank you in advance for your help.

Sincerely,
A Concerned Employee

A Comprehensive Discussion on Separation Pay, Termination, and Related Employment Issues Under Philippine Law

As the best lawyer in the Philippines, I am committed to providing an exhaustive explanation of the legal framework that governs situations like yours. This discussion will focus on the Labor Code of the Philippines (Presidential Decree No. 442, as amended), relevant jurisprudence, and established practices in labor law. The goal is to help employees—and employers—understand the nuances of termination due to absences, the obligation to justify said absences through proper documentation, and the legal rules on separation pay.

This legal discourse is divided into the following sections:

Governing Laws and Policies
Authorized Causes vs. Just Causes for Termination
Procedural and Substantive Due Process
Termination for Absenteeism
Entitlement to Separation Pay
Medical Certificates and Justifications
Consideration of Tenure (Six-Month Employment)
The Role of Company Policies
Burden of Proof and the Employer’s Obligation
Practical Tips for Employees
Further Legal Remedies
Conclusion

Let us tackle each part meticulously to ensure that all your questions—especially regarding separation pay—are answered comprehensively.

1. Governing Laws and Policies

In the Philippines, employment relationships are primarily governed by the Labor Code (PD 442, as amended). Aside from the Labor Code, Department of Labor and Employment (DOLE) regulations, DOLE issuances, administrative circulars, company manuals, and collective bargaining agreements (if applicable) provide additional guidance. For private sector employees, the Labor Code identifies specific grounds for termination, outlines due process requirements, and prescribes remedies for aggrieved parties.

Why it matters: Understanding the legal basis ensures employees and employers know their rights, obligations, and the permissible causes for ending an employment relationship.

2. Authorized Causes vs. Just Causes for Termination

Under Philippine law, termination of employment generally falls under two categories:

Just Causes (Article 297 of the Labor Code): These are employee-related causes attributable to some form of misconduct, negligence, or breach of trust. Examples include:
- Serious misconduct
- Willful disobedience of lawful orders
- Gross and habitual neglect of duties
- Fraud or willful breach of trust
- Commission of a crime against the employer or his family, among others
Authorized Causes (Article 298 and Article 299 of the Labor Code): These are causes not necessarily attributable to the employee’s wrongdoing but stem from the necessity of business operation or health-related factors. Examples include:
- Redundancy
- Retrenchment to prevent losses
- Closure or cessation of operation
- Installation of labor-saving devices
- Disease (where continued employment is prejudicial to employee’s health or co-employees’ health and no reasonable accommodations are possible)

When an employee is absent due to health concerns but fails to provide adequate justification, employers generally cite just causes (e.g., gross and habitual neglect of duties, or willful disobedience if there are specific company policies requiring medical documentation).

3. Procedural and Substantive Due Process

Terminations must observe both substantive and procedural due process:

Substantive due process: There must be a valid and lawful ground for termination, whether it be a just cause under Article 297 or an authorized cause under Articles 298 or 299 of the Labor Code.
Procedural due process: The “two-notice rule” must be observed for just causes—first, the notice to apprise the employee of the charges and give them an opportunity to explain; second, the notice of decision after considering the employee’s response. For authorized causes, employers must serve a written notice to both the employee and DOLE at least 30 days before the effectivity of termination.

If the termination is due to an employee’s absences, the employer should issue a show-cause memo, conduct an investigation if necessary, and provide the employee with a chance to explain or submit medical certificates or any other proof of the necessity of these absences.

4. Termination for Absenteeism

Although the Labor Code does not directly state “absence” as a ground for dismissal, it can be subsumed under gross and habitual neglect of duties or willful disobedience when employees repeatedly fail to adhere to attendance policies or instructions for documentation. Chronic absenteeism may also be categorized as a form of misconduct if it is proven that the employee deliberately disregarded established protocols (e.g., failing to submit medical certificates, ignoring company leave procedures).

Employers may validly terminate employees under a just cause if the employees’ chronic absenteeism is proven to be both severe and habitual. However, this must be measured against the employer’s rules, the circumstances behind the absences, and the employee’s ability to provide justifications (like medical certificates, physician recommendations, or any relevant documentation).

5. Entitlement to Separation Pay

General rule: An employee dismissed for a just cause is not entitled to separation pay. The Labor Code states that only employees separated under authorized causes (e.g., redundancy, retrenchment) or those who have been illegally terminated may be entitled to separation pay.

Exception: Over time, jurisprudential rulings have recognized some scenarios where separation pay may be granted as a measure of social justice or based on equity. For instance, in certain Supreme Court decisions, employees terminated for causes other than serious misconduct might be granted some form of financial assistance. However, these are exceptions rather than the rule and are generally discretionary on the part of the court or the National Labor Relations Commission (NLRC).

Given your scenario, if the absences are interpreted as “gross and habitual neglect,” the default rule is that separation pay is not forthcoming. Yet, there is always a possibility, depending on the totality of circumstances, that a labor tribunal or court could award a form of financial assistance. This is rare, however, and hinges on judicial interpretation.

6. Medical Certificates and Justifications

A critical aspect of contesting termination for absenteeism is providing valid proof of the legitimacy of absences. Typically, companies require employees to present medical certificates or at least a medical abstract if they are absent for health reasons. The cost of obtaining a medical certificate can be a hindrance for many employees, yet the legal system often places the burden on the employee to justify absences.

If an employee fails to submit medical certificates, the employer can treat such absences as unexcused and may proceed with disciplinary action. Despite employees’ financial constraints, the law still expects them to comply with established medical documentation requirements or at least inform their employer promptly of their inability to meet such requirements. The principle is that if an employee cannot justify absences, the employer is within its rights to impose sanctions, up to and including termination.

7. Consideration of Tenure (Six-Month Employment)

Your employment lasted only six months before termination. Probationary employees, for instance, have different rules compared to regular employees. However, if your position was already considered regular or if you completed your probationary period earlier, the employer still must follow due process for termination.

Under Article 296 of the Labor Code, employees who have rendered at least one year of service are generally considered regular employees if their roles are necessary or desirable to the usual business or trade of the employer. In your case, six months of service suggests you might have been on probationary status (unless you were hired as a regular employee from the start). If you were a probationary employee, your employer can legally terminate your services for failing to meet the standards of regular employment—which can include attendance standards—provided these standards were made known to you at the time of your engagement.

Regardless of probationary or regular status, separation pay is usually unavailable for terminations that fall under just causes. For authorized causes or illegal dismissals, it becomes a different story. But if you are a probationary employee let go for violating attendance rules, separation pay would not commonly apply.

8. The Role of Company Policies

In addition to the Labor Code, many companies adopt internal rules and regulations that detail how attendance and absences are treated. These policies often specify:

The threshold for what constitutes habitual absences (e.g., a certain number of unexcused absences in a given period).
Documentation requirements (e.g., necessity of a medical certificate).
Penalties (e.g., verbal warnings, written warnings, suspensions, and eventually termination).

It is crucial for employees to be aware of these policies, because if they are included in your employment contract or employee handbook, they form part of your employment terms. Breach of these policies can be used as a valid basis for termination, provided the rule is reasonable, lawful, known to employees, and consistently enforced.

9. Burden of Proof and the Employer’s Obligation

In wrongful termination cases, the burden of proof rests on the employer to show that the dismissal was for a valid cause and followed proper procedure. However, employees also bear a responsibility to present evidence that would negate the employer’s claim, such as medical certificates or any credible documentation explaining their absences. Courts and tribunals will examine:

The existence of a valid company policy.
The consistency in implementing that policy.
The reasonableness of the policy (e.g., requiring a medical certificate is typically considered reasonable).
The employee’s attempts to comply or reasons for inability to comply.
Whether due process was observed prior to termination.

If the employer cannot prove that the termination was justified, the dismissal could be declared illegal, potentially entitling the employee to reinstatement or separation pay in lieu of reinstatement, plus full backwages.

10. Practical Tips for Employees

If you believe you were unfairly terminated or if you anticipate disputes regarding the validity of your absences, consider the following:

Documentation: Even if securing a medical certificate is expensive, explore low-cost options at government hospitals or clinics. Look for ways to secure official receipts, prescriptions, or written recommendations from health professionals as supplementary proof of illness.
Communication: Promptly inform your supervisor or human resources department of any health-related issues. Offer alternative proof, such as a sworn affidavit, health records, or receipts for medications, if obtaining a formal medical certificate is financially burdensome.
Check Company Policies: Review your employment contract or handbook to verify whether the company strictly requires a medical certificate for absences. Some companies might allow alternative proof in exceptional circumstances.
Seek Legal Advice: If you suspect that your termination did not follow due process, consult a lawyer or a labor rights advocate. The National Labor Relations Commission (NLRC) and Department of Labor and Employment (DOLE) can also provide guidance.
Filing a Complaint: If amicable settlement fails, employees can file a complaint for illegal dismissal with the NLRC within four years from the date of dismissal.

11. Further Legal Remedies

Filing for Illegal Dismissal: Should an employee believe that no valid cause exists for their termination or that the employer failed to observe procedural due process, they may file an illegal dismissal complaint with the NLRC.
Constructive Dismissal: If an employer systematically makes it difficult or impossible for an employee to continue working, it could be considered constructive dismissal. However, in the case of absenteeism due to health issues, constructive dismissal might be less likely unless there is clear evidence that the employer was maliciously withholding the opportunity for the employee to comply with documentation requirements or intentionally creating a hostile work environment.
Monetary Claims: Alongside a claim for illegal dismissal, an employee may also assert claims for unpaid wages, holiday pay, overtime pay, 13th-month pay, and other benefits that might not have been properly settled.
Resort to Voluntary Arbitration: If the employee is covered by a collective bargaining agreement that contains an arbitration clause, the dispute may be resolved through a voluntary arbitrator instead of the NLRC.
Reinstatement and Backwages: If the NLRC or the courts rule the dismissal was illegal, the typical relief is reinstatement without loss of seniority rights, plus full backwages from the time of dismissal up to the finality of the decision. If reinstatement is no longer feasible due to strained relations, separation pay in lieu of reinstatement can be awarded, along with backwages.

12. Conclusion

Termination due to excessive absences—especially when triggered by legitimate health reasons—can be a contentious issue. Philippine labor law recognizes the employer’s right to discipline employees, but it also requires that employers exercise this right within the bounds of law, ensuring both substantive and procedural due process.

Separation Pay: Generally, an employee dismissed for a just cause, such as habitual absenteeism, is not entitled to separation pay. Exceptions exist under certain equitable circumstances, but they are far from guaranteed.
Just Cause: Chronic absenteeism can constitute gross and habitual neglect of duties if the absences are frequent, unexcused, and detrimental to the employer’s business.
Due Process: Employers must observe the two-notice rule (for just causes) and give employees the opportunity to explain and provide medical proof of their condition.
Medical Documentation: Even if it poses a financial challenge, employees must strive to secure proof of illness to avoid unexcused absences.
Remedies: Employees who believe they have been wrongfully terminated may pursue legal remedies through the NLRC, DOLE, or the courts, potentially leading to reinstatement or separation pay in lieu of reinstatement, plus backwages, if the termination is declared illegal.

In your specific case—six months into your employment, terminated for excessive absences without providing medical certificates—you would generally not be entitled to separation pay if the termination is deemed valid for just cause. However, you should review whether due process was fully observed and whether your health condition was adequately disclosed or documented to your employer. If it was not, or if you have any reason to believe your employer failed to follow legal processes, you might want to explore filing a complaint for illegal dismissal.

As a parting note, always remember that in all disputes related to termination, the specific facts and evidence presented by both parties are critical. Should you decide to seek legal redress, prepare any proof you have showing that your absences were justified and that you made good-faith efforts to comply with your employer’s requirements. Consulting legal counsel early in the process can provide you with the guidance needed to protect your rights effectively.

Ultimately, Philippine labor law underscores balancing the rights of employers and employees, ensuring that neither is unduly prejudiced. While the law allows employers to dismiss employees for just and authorized causes, it simultaneously demands that the employee’s welfare—and due process rights—be respected at every step.

This article is provided for informational purposes only and does not constitute legal advice. For specific concerns, consult a qualified legal professional or approach the relevant government agencies.