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CONTRACTING / SUBCONTRACTING – an arrangement whereby a principal agrees to put out or farm out with a contractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal
CONTRACTOR – any person or entity, including a cooperative, engaged in LEGITIMATE contracting/subcontracting arrangement either services, skilled workers, temporary workers, or a combination of services to a principal under a Service Agreement
Contracting arrangement in Labor is Expressly allowed by Law. (Art. 106)
The court has taken judicial notice of the general practices adopted in several government and private institutions & industries of hiring independent contractors to perform special services. These services range from janitorial, security and even technical or other specific services. (Neri “radio operator” vs NLRC, FEBTC &Building Care Corp., 224 SCRA 217)
Serious Misconduct - willful disobedience by the ee of the lawful orders of his er or representative in connection with his work
Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willfull in character, and implies wrongful intent and not mere error in judgment. The misconduct to be serious must be of such a grave and aggravated character and not merely trivial or unimportant
The Order of the ER must be
Reasonable & lawful
sufficiently known to the EE
in connection with the duties which the EE has been engaged to discharge
For termination of employment based on just causes, procedural due process requires that the employee be given the benefit of the so-called twin-notice and hearing , as follows:
First notice: Notice to Explain (NTE) or order to show cause. A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side.
Hearing or formal investigation . A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him.
Second notice: Notice of decision . A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. (See Art. 277[b] and Sec 2, Rule I, Book VI, IRR)
The very purpose of requiring the employer to observe proper termination process is to give the employee ample opportunity to respond to the charges against him or to defend himself. What the law require is ample opportunity .
Ample opportunity means every kind of assistance that management must accord the employee to enable him to prepare adequately for his defense including legal representation.
The first notice informing the employee of the charges against him should set out clearly what he is being held liable for. It should neither be pro-forma nor vague. This is consistent with the requirement that the employee should be afforded ample opportunity to be heard and not mere opportunity.
Moreover, the dismissal, if necessary, must be based on the same grounds cited in the NTE. If the dismissal is based on grounds other than those specified in the notice, he is deemed to have been deprived of due process.
However, in instances where the ee is validly dismissed for causes other than serious misconduct or those reflecting of his moral character, separation pay is allowed as a measure of social justice (244 SCRA 125; 296 SCRA 184)
WITH JUST CAUSE BUT W/O DUE PROCESS
Dismissal is legal
ER may be liable to pay indemnity in the form of nominal damages
Sanction should be tempered because the dismissal was initiated by an act imputable to the EE
Nominal damages: PHP 30,000.00 (Agabon vs NLRC, GR No. 158693, 11/17/2004)