RESEARCH

To: TEL
From: ASY
Date: June 13, 2016
Subject: Employee Fails to Return to Work After the Expiration of her Maternity Leave

1. Upon the termination of the employee’s maternity leave, she must return to work
as immediately, unless otherwise agreed upon.
If the employee wants to change the date of your return, there is a need to inform
the employer in advance. If she decides not to return to work at the end of the
maternity leave because she is not yet ready and may need more time to
recuperate, she needs to file an application for extension of maternity leave
together with a medical certificate from your doctor. The extension is without pay
unless she has earned enough sick or vacation leaves to cover for her absence.

If she had surgery due to a gynecological disorder, she may avail of a special leave
benefit of two months with full pay under the Magna Carta of Women. This right
is available to women employees who have worked for at least six months for the
last 12 months.

All women have a right to return to work after maternity leave, regardless of the
size of their employer’s company.

SOURCE: https://hrdguru.wordpress.com/2011/11/28/facts-about-the-
maternity-leave-benefit/

2. One just cause of dismissal under the Labor Code is Gross and Habitual Neglect
of Duties. In order to constitute a just cause for the employee’s dismissal, the
neglect of duties must not only be gross but also habitual.

A. Gross Neglect means an absence of that diligence that an ordinarily prudent

man would use in his own affairs.
B. Habitual Neglect implies repeated failure to perform one’s duties over a
perioed of time, depending on the circumstances.

1. Habitual Absenteeism and Tardiness.

Habitual absenteeism and tardiness constitute gross and habitual

neglect of duty. Repeated acts of absences without leave and frequent
tardiness reflect indifferent attitude to and lack of motivation in his work.
(Valiao vs. CA, G.R. No. 146621, July 30, 2004.)
 The dismissal of the employee is based on his unjustified absences for
a number of months. As an employee the petitioner is expected to be
aware of the rules and regulations of the bank regarding leave of
absences. As observed by the Commission, the absences of the petitioner
were not authorized. On this score, his dismissal appears to be
warranted. (Cando v. NLRC, G.R No. 91344, September 14, 1990)

2. Abandonment of Work

To constitute abandonment, two elements must concur: (1) Failure to

report for work or absence without justifiable reason; (2) A clear
intention to sever the employer-employee relationship, with the second
element as the more determinative factor and being manifested by over
acts.

While it appears that Shoemart failed to observe due process in the

termination of Soriano's employment, the clearly apparent conclusion in
this case is that respondent Soriano is not entirely without fault. She
was grossly remiss in her duties toward her employer, as shown by her
frequent, prolonged and unexplained absences. She was intermittently
absent from September 30, 1981 to October 14, 1981 and from October
21, 1981 until the present complaint for illegal dismissal was filed on
October 7, 1983. And while there might have been occasions when
petitioner was apprised of the reasons for her non-appearance (e.g.,
Exhibit E, Letter to Shoemart dated August 10, 1982 with copy of the
death certificate of Soriano's father), the fact remains that from May
30,1982 and onwards to October 7, 1983, there was absolutely no
communication from her. (pp. 11-12, Private Respondent's
Memorandum).

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Otherwise stated, the petitioner was justified in assuming that Soriano

was no longer interested in resuming her employment. "Abandonment"
of work is manifest. It cannot be said that Soriano was not aware of the
consequences of her acts under the circumstances of this case. The
petitioner cannot be faulted for not continuing Soriano in her
employment. (Shoemart, INC. vs. NLRC (G.R. No. 74229 August 11,
1989)