“Ghosting coasting” employees

“Ghosting coasting” refers to new-hires who stick around for the first few pay then disappears afterwards no longer reporting for work. These employees may be considered to have abandoned their employment. However, PH Labor Law considers them employed with their employers unless their employment is terminated. Due process is required to properly terminate their employment to avoid illegal dismissal.

1. Concept

“Ghosting coasting” refers to newhires who stick around for the first few pay, disappears afterwards no longer reporting for work, applies at a different company, and then repeats the cycle.

The employees may stick around for the first pay or the next pay cycles. Thereafter, they simple do not report back for work without any prior notice or explanation. With their very short stint and abrupt disappearance, it is as if they were “ghosts”. Hence, the term “ghosting”

On the other hand, the word “coasting” refers to them effortlessly surfing or coasting from one employer to another.

2. Abandonment

Employees who ghost their employees may be considered to have abandoned their work or employment.

“Abandonment of employment is a deliberate and unjustified refusal of an employee to resume his employment, without any intention of returning.” (Rodriguez v. Sintron Systems, Inc., G.R. No. 240254, 24 July 2019)

a. A just cause

“While it is not expressly enumerated under Article 297 of the Labor Code as a just cause for dismissal of an employee, it has been recognized by jurisprudence as a form of, or akin to, neglect of duty.” (Ibid.)

If the employee has been absent for several days to weeks already, then the neglect of duty escalates to gross and habitual neglect of duty, which is a just cause under the Labor Code.

b. Requisites

It requires the concurrence of two elements:

1) Failure to report for work or absence without valid or justifiable reason; and

2) A clear intention to sever the employer-employee relationship as manifested by some overt acts. (Ibid.)

3. Employees who abandoned remained employed with their employers under PH Labor Law

Unknown to many, PH Labor Law considers employees who abandoned their work or employment to be still employed with their employers, unless their employment is terminated.

The reason is simple.

In general, there are only two (2) ways of terminating:

1) By the employee – e.g. resignation, retirement, death, etc.; or

2) By the employer – just cause termination, and authorized cause separation.

Employees who abandoned their employment did not resign, retire, nor (presumably) die.

On the other hand, and it is often the case, employers do not initiate or undergo just cause termination nor authorized cause separation. They, just leave it as it is. This is a grave and serious mistake.

a. Employees who abandoned work tend to win illegal dismissal cases

In several cases, employees who have abandoned work win illegal dismissal cases against their previous employers. This may sound illogical and incredible. Read a bit more and you’ll realize that it is actual logical, and yes, incredible.

The labor law case will usually read like this: the complainant left work and never to be heard from until 1-2 years after s/he returns for work; naturally and enraged, the employer tells the employee that s/he has is no longer employed with the Company. (Sounds familiar so far?)

Now, just one question: Did either of the employee or the employer properly terminate the employment relations?

That’s the one million pesos question. The answer usually is – no.

Why? Because the employer just left it as it is. No action.

Remember, if the employer wants to terminate employment relations. It may only be via just cause termination or authorized cause separation. If neither one has been made, the employment relations have never been actually cut or severed, under the eyes of the law, so to speak.

Now, when the employer told the employee that s/he is is no longer employed, that is an act of dismissal. Since we just said that no just cause termination was observed, meaning the twin-notice and hearing was not observed, then the employer has actually committed illegal dismisal.

And that is how labor law cases are usually resolved in favor of employees who abandoned work and later on seeks to return to work but is barred by the employer.

4. Due process is required to properly terminate the employment of employees who have abandoned work.

As earlier pointed out, abandonment of work is akin to neglect of duty. If that neglects spans several days to weeks, it becomes gross and habitual neglect of duty which is a just cause for termination of employment.

Since there is just cause, due process may be initiated.

First, a notice to explain should be sent to the employee’s last known address (usually seen on the employment contract or in any subsequent document if the employer requires its employees to regularly update personal information). The notice to explain should provide the employee an opportunity to explain. Thus, the employer may set a schedule for an administrative hearing and/or require the employee to submit a written explanation. Both should be scheduled at least five (5) calendar days from receipt of the notice.

Second, the employee’s opportunity to explain should be observed. If an administrative hearing was scheduled, the employee should be given full opportunity to hear his/her side. On the other hand, if the employee was directed to submit a written explanation, it must be read and safely kept on record. In both cases, the employee’s reasons must be cafefully read and evaluated.

Third, if the employer finds that the reasons are insufficient, the termination notice may sent to the employee to complete the due process termination of employment.

Disclaimer: All information is for educational and general information only. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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