Can the Staff Refuse to Report Back to Work Due to the Pandemic?

There are many reasons why a staff may refuse to report back to work as follows:

1. He’s angry at the boss for not receiving any ayuda from ECQ to present day. 
2. He’s already in the province and don’t want to take the trouble to return back to his workplace.
3. There’s no convenient public transportation available to report to work day by day.
4. He’s living with at-risk individuals and don’t want to expose them to COVID-19.
5. His parents don’t want him to work in the fears of him getting sick. In short, “Takot ako sa buhay ko.”
6. He does not think it’s worthwhile to work only 3x a week since the company is doing Flexible Work Arrangement.
7. He does not want to physically report to the office and insists that he does WFH.
8. He stubbornly just does not want to report to work. 
9. Any other reason as to why the staff refuses to return back to work.

The problem is, so long as the company follows the minimum health guidelines indicated by DOLE and DTI for the company to start working, the company can compel the staff to report back to work. These guidelines are as follows:

• DTI and DOLE Interim Guidelines on Workplace Prevention and Control of COVID-19, May 1, 2020
• Department Order No. 35, Series of 2020: Construction Safety Guidelines for the Implementation of All DPWH Infrastructure Projects During the COVID-19 Public Health Crisis (May 4, 2020)
• DOH Department Memorandum No. 2020-0220: Interim Guidelines on the Return-to-Work issued by the DOH (May 11, 2020)
• Joint Memorandum Circular No. 20-04-A, Series of 2020 (DTI and DOLE Supplemental Guidelines on Workplace Prevention and Control of COVID-19, August 15, 2020)

Hence, if the staff stubbornly refuses to report back to work despite the company’s insistence for them to do so, the company can follow the proper due process to compel the staff to report back to work. While workers in the Philippines have a lot of rights, employers also have the right to ask the staff to do their job and show up to work so as not to hurt business operations. If the staff cannot even show up to work, the company can follow DUE PROCESS to get the staff to report.

Staff is Citing Transportation Issues for NOT Reporting to Work. What Now?

Give him a date deadline to report to work. If he can go home to the province safely, he can also find the way to get back to work IF he wants to. Him traveling from his province back to his workplace is not really the employer’s problem. As employers do have the right to ask him to report to work since his PRESENCE and ATTENDANCE are the minimum requirements of the employee fulfilling his employment contract.

Truth be told, there are already public transportation available. The MRT/LRT are open, many buses are available, tricycles, FX and vans, and other methods. So saying walang public transport is not totally true. Employers must do their job to check if this is true or not.

But the Employer is Not Providing Shuttles. Can I Use This as An Excuse?

Depends on how big your employer is.

DOLE and DTI Advisory No. 20-02, Series of 2020 dictate:

Section II (B) (4) on Shuttle Services –

The provision of shuttle services shall be read consistent with Inter-Agency Task
Force (IATF) Resolution No. 69 dated 07 September 2020, thus:

i. Large-sized private establishments with total assets above Php 100,000,000.001 located inside special economic zones and other areas under the jurisdiction of Investment Promotion Agencies are required to provide shuttle services for their employees.

In case the private establishments are unable to financially sustain the provision of shuttle services, they may adopt alternative arrangements, such as cost-sharing, partial vouchers for use of Transport Network Vehicle Services, and other alternative arrangements to facilitate the transportation needs of their employees.

ii. Employers may contract the services of Public Utility Vehicles (PUV) to
subsidize public transport operations.

Only companies who have assets of more than Php 100 million and are LOCATED INSIDE special economic zones are required to provide shuttle services. If the company is smaller than this, there is no requirement to provide. Hence, employees cannot use this as an excuse not to go to work.

What’s more, if the company does charge fair market price for the shuttle services, this is allowed with the following conditions:

What About if I was Pregnant or At High Risk of COVID-19? What Now?

DOLE Advisory No. 20-02, Series of 2020 states the policy clearly:

Section II (C) on Most-at-Risk (MARP) Employees and Workers below 21 Years of Age – Employees classified as MARP and those who are at least 18 years old but below 21 years may be allowed to report to work for eight (8) hours, provided that they undergo a fit-to-work examination and secure a medical certificate from any competent authority (i.e. an occupational health physician or government physician with occupational health training) certifying the employee’s fitness to work for regular hours under Rule 1967 of the Occupational Safety and Health Standards.

However, employers are highly encouraged to allow the said employees to be in a work from home arrangement, when applicable.

Ayaw pa din mag report. What is the Proper Due Process in Asking the Staff to Report Back to Work?

First, the company has to send the staff a clear Return to Work Order (RTWO). You can make this friendlier and more to your taste, but the instruction must be clear that their presence back in the office is required:

Dear Sir/Madam,

We would like to ask you to REPORT TO WORK on September 10 (Thursday), following normal office hours of 9:00 am to 6:00 pm. Failure to report is tantamount to Absence without Leave (AWOL). Disciplinary action following due process will be imposed if in case you do not show up to work. We are mandated to resume normal operations with complete number of people as declared.

Sincerely,

If they choose to ignore the Return to Work Order, these are the charges:

If they do not show up to their first day of reported work, please follow the procedural due process as follows so as not to be charged with Illegal Dismissal. There are:

• Notice to Explain (NTE)
• Notice of Hearing
• Notice of Termination

Notice to Explain

If there’s an offense, always send them a Notice to Explain (NTE) first.

The NTE must be in WRITTEN format, printed on company letterhead and factually includes the Details of the Offense that was made, which Code of Conduct that they have violated, the possible sanction if the offense is proven true, a period to answer the allegation, and if they do not explain by X date, that they waive their right to explain their side. Have the NTE sent via courier service AND registered post mail to his last known address to be valid. While emailing may be an option especially during COVID-19 season, be prudent and make sure you send the letter to their last known address.Source: Ariva, Company Policy: Elements of Administrative Investigation and Progressive Discipline. July 24, 2014. Philippines.

Does an Notice to Explain (NTE) mean that the employee would be fired?

Absolutely not.

A Notice to Explain (NTE) merely asks the employee to explain his side of the story in writing to rebut the charges hurled to him. While it is the first procedural step to dismiss a staff, the default though is that the employee most likely has a good explanation to an incident. In most cases, especially if the offense is light, the end game is not a dismissal but rather a warning, a light punishment, or at most suspension.

Please remember, the penalty must be equivalent to the offense. It must be reasonable pa din. Hence, if the offense is light, you just have to accept the disciplinary action, which is usually not termination.

Can a Staff Refuse to Receive or Acknowledge the NTE?

Notice of Hearing

The next step is to invite them to an administrative hearing so that you can at least hear their side on why they were unable to show up to work. My friend and HR Guru Sonnie Santos shares his thoughts on how to properly conduct an administrative hearing.

Please ensure that there’s minutes to the meeting and an attendance sheet to ensure that the administrative hearing was conducted.

This is a time where the employee is given a chance to present his testimony, defend himself and provide evidences as to why the charges against him. This gives the employee a fair chance to be heard, and he can even bring his lawyer to the hearing for added protection.

Now, what if the employee did not show up to the administrative hearing. Can he later say that the company did not follow due process?

Nope, by holding an administrative hearing, the company shows good will in allowing the employee’s side to be heard. If the employee fails to show, he waives his right to have his side heard, leaving the company to make a decision based on the facts presented.

Can the employee not be fired if he was able to defend himself properly during the admin hearing?

Absolutely — the company can only fire the staff if the offense was true and valid. If it’s just a case of mistaken identity or if the staff can prove that he himself did not do the offense, there is no reason to discipline the staff.

Is the administrative hearing dispensable?

G.R. No. 117453, Autobus Workers Union and Ricardo Escanlar vs. NLRC and Mr. Robert Ong (June 26, 1998) answers this question:

The Supreme Court decided: “The twin requirements of notice and hearing constitute the essential elements of due process. Due process of law simply means giving opportunity to be heard before judgment is rendered. In fact, there is no violation of due process even if no hearing was conducted, where the party was given a chance to explain his side of the controversy. What is frowned upon is the denial of the opportunity to be heard.¹⁹

A perusal of the record reveals that petitioner was duly notified of the charges against him and given the opportunity to defend himself via a written explanation and thereafter, to adduce evidence on his behalf during a formal hearing where he was represented by a counsel of his own choice.

A formal trial-type hearing is not even essential to due process. It is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based.²⁰ This type of hearing is not even mandatory in cases of complaints lodged before the Labor Arbiter.^21.”

Notice of Decision/Termination

The Notice of Termination should reiterate the reasons why the person is being terminated, starting from the offense up until his termination. The details must be complete with all the circumstances involving the charge against the employee in question, and the grounds must be established on why the company has decided to severe their employment. The ground in the notice of termination should of course be the same as that stated in the NTE. 

It must once again be in written format and presented either to the person himself, or be sent via registered mail to his last known address. Keep the stub as proof and file it to the 201 files.

But there’s still COVID-19 Out There? I’m Placing Myself in Danger. Should not me considering myself to be in imminent danger give me sufficient legal reason for me to refuse to work?

While the staff can conveniently declare that his work space is unsafe and he’s placed in imminent danger and hence, has the excuse to not report to work, sadly, fact of the matter is, DOLE or the company’s safety officer must first determine that the workplace is indeed dangerous, and issue a Work Stoppage Order to suspend operations.

Hence, employees cannot use the excuse that “takot ako sa buhay ko,” to refuse to go to work without any repercussions. For them to use the excuse that their workplace is dangerous,

So long as the company complies with the DTI and DOLE Interim Guideline Workplace Prevention and Control of COVID, workers cannot say that there is imminent danger in the workplace without any proof.

Without the Work Stoppage Order from DOLE, employees must report if asked by their employees. If they went absent, employers have the right to issue warnings and sanctions to get them to come in.

I Have Already Sent the RTWO Pero Hindi Pa Din Pinansin. What’s the Problem?

The biggest problem are the HR practitioners themselves.

If you send a Return to Work Order and it gets ignored, it is the EMPLOYER’S RESPONSIBILITY to follow it up with a Notice to Explain and start with Due Process.

If you don’t follow it up, while there is just cause to terminate a staff if they continue to not show up to work, the company cannot terminate properly since due process was not done. Always remember when terminating an employee:

Source: Slideshare

If After Following Due Process, Can the Employee Still File a Labor Case Against Me if it is Clearly His Fault He Failed to Show Up to Work?

Yes, it is every employee’s right to complain about his/her employer if there are any grievances. Hence, it is crucial that a company sets up TODAY a grievance mechanism within the company so that any grievances must be first channeled within the company. This is in line with Labor Advisory No. 17-B, Series of 2020 which was released just last week.

Secondly, while it is every person’s right to go to DOLE for any labor complaint, there is a proper due process in doing so. It is not as easy as going to complain, then getting your matter resolved. Instead, DOLE will send the company a Single Entry Approach (SEnA) to ask the company and the employee to settle the issue before it is made into a case.

Especially with COVID-19, there is a change in policy that Position Papers may be requested earlier than usual. If that’s the case, lawyers need to be asked in, and lawyers charge per case acceptance and appearance per hearing, which is a hassle for both sides.

At the end of the day, if the company follows DUE PROCESS and there is truly an offense made by the staff, then it is the Employer’s right to terminate. And no matter how many complaints an employee will lodge, the law will strongly be on the Employer’s side, and the case will be thrown out.

In short, pag may kasalanan ka, matakot at magbayad. Pero kung ikaw ang may tama, ipaglaban mo.

Good luck!