Termination
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Termination Termination Presentation Transcript

  • ARTICLE 279. Security of Tenure. “In cases of regular employment, the employer shall notterminate the services of an employee except for a just cause or when authorized by this Title. An Employee who is unjustlydismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his fullbackwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.”
  • SECURITY OF TENURE is one of the basic rights of workers (BWC-DOLE). It is the right not to be removed from one’s job Itexcept for a valid reason and through properprocedure. right is guaranteed in the Constitution. This
  • Excerpts from Sec. 3, Art. XIII of the 1987 Philippine Constitution “The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality ofemployment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage.”
  • Though the Article specifies “regularemployment”, security of tenure does notexclusively apply to regular employment only. It also applies to non-regular employment such as fixed-periodemployment, seasonal, project and even probationary employment.
  • Managerial employees are also entitled to security of tenure. The fact that one is amanagerial employee does not by itself exclude him from the protection of the constitutional guarantee of security of tenure. (Case Example: PLDT vs. Tolentino, Sept. 21, 2004)
  • JUST CAUSES•Faults and misbehaviors of the employee•Effectivity date of dismissal is determinedby the employer.•Employer is not legally liable to giveseparation pay to the dismissed employee.•Due Process – 2 Notices: a) “Show-CauseMemo”; b) Subsequent Notice informingemployer’s decision
  • ART. 282. Termination by employer.An employer may terminate an employment for any of the followingcauses:(a) Serious misconduct or willful disobedience by the employee of thelawful orders of his employer or representative in connection with hiswork;(b) Gross and habitual neglect by the employee of his duties;(c) Fraud or willful breach by the employee of the trust reposed in him byhis employer or duly authorized representative;(d) Commission of a crime or offense by the employee against the personof his employer or any immediate member of his family or his dulyauthorized representatives; and(e) Other causes analogous to the foregoing.
  • Serious Misconduct•Misbehavior or an improper conduct, which is intentional innature•Transgression of some established and definite rule of action,a forbidden act, a dereliction of duty, willful in character andimplies wrongful intent and not mere error in judgment•Grave and not merely trivial•Must be in connection with work•Sexual Harassment, Drug Use, Habitual Drunkenness, Acts ofImmorality, Falsification of Time Card
  • WILLFUL DISOBEDIENCE•Refusal to obey orders, regulations and instructions, which arereasonable and lawful, well-understood and sufficiently knownby the employee, and related to the employee’s duties•Must relate to substantial matters, not trivial•Ex. Refusal to transfer – An employee, as a rule, should obeyan employer’s order to transfer (job assignment, location).Transfer though should be reasonable and not prejudicial tothe employee and should not involve demotion or diminutionof salary and benefits.
  • NEGLECT OF DUTIES•Gross and habitual failure to observe work standards and fulfillwork assignments which tends to prejudice the employer’sinterest•An employer has the right to impose productivity standardsthus failure to observe these may constitute just cause fordismissal•Another example is job abandonment (1) without valid reason& (2) with clear intention to sever employer-employeerelationship
  • FRAUD•Any act, omission, or concealment related to the employee’swork, which involves breach of legal duty, trust, or confidenceand is injurious to the employer or its representatives•Implies willfulness or wrongful intent, ergo, the innocent non-disclosure of facts will not constitute just cause for dismissal
  • LOSS OF CONFIDENCE• Willful breach of trust done by employees occupying positions of trust and confidence• It is the breach that results in employer’s loss of confidence in the employee.
  • COMMISSION OF CRIME OR OFFENSE•Crime against the employer or the employer’s family member – spouse,ascendants, descendants, siblings (legitimate, natural or adopted), siblingsof his relative by affinity in the same degrees or by consanguinity within thefourth civil degree•An employee may be acquitted in a criminal case and yet his dismissal bythe employer may remain. The only requirement mentioned is commissionof a crime, and not conviction. To convict a criminal requires proof beyondreasonable doubt; to dismiss an employee requires only substantialevidence.
  • ANALOGOUS CAUSES• Equivalent to the just causes enumerated done voluntarily or willfully by the employee not to the employer but maybe to the vendor, customer, visitor, etc.• Example: Violago Trucks & Petrophil Case
  • AUTHORIZED CAUSES•Business and economic reasons & Disease•Employer is legally required to give separation payto the employee, except in the case of companyclosure or cessation of operation/s due to businesslosses.•No hearing neededEmployer has to give the employee and DOLEwritten notices thirty (30) days ahead of theprojected separation.
  • ART. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to theinstallation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertakingunless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor andEmployment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and incases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for everyyear of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.
  • ART. 284. Disease as ground for termination.An employer may terminate the services of an employee who has beenfound to be suffering from any disease and whose continuedemployment is prohibited by law or is prejudicial to his health as well asto the health of his co-employees: Provided, That he is paid separationpay equivalent to at least one (1) month salary or to one-half (1/2)month salary for every year of service, whichever is greater, a fraction ofat least six (6) months being considered as one (1) whole year.
  • AUTOMATION• Reduction of the number of workers due to new machinery• Manufacturer has the right to use new labor-saving devices with an aim to effect more economy and efficiency in production.• Separation Pay = at least one month pay or at least one month pay for every year of service, whichever is higher (bigger amount since business is still profitable)
  • REDUNDANCY•Services of an employee are in excess of what is actually required bythe industry; maybe due to over-hiring of workers, decreased businessvolume, dropping of a product line/service activity, streamlining,mergers and reorganization•Management must show adequate proof that the abolished positions wereunnecessary.•Separation Pay = at least one month pay or at least one month pay forevery year of service, whichever is higher (bigger amount since business isstill profitable)
  • RETRENCHMENT• Termination of employees due to substantial and imminent loss and this loss must be proven by convincing evidence. Termination is also done when it is seen as a necessary step in effectively preventing further losses.• Conditions: (1) Intended to prevent losses and such losses are proven; (2) Written notices are served on the workers and the DOLE at least one month before the effective date of retrenchment; (3) Separation pay is paid to the affected workers; (4) There must be fair and reasonable criteria in determining the employees to be dismissed (i.e. temporary employees first, efficiency rating, and seniority)
  • RETRENCHMENT• Justifications: (a) Substantial losses; (b) Substantial loss must be reasonably imminent which can be perceived objectively and done in good faith; (c) Reasonably necessary, likely to prevent more losses and done as a last resort; (d) Sufficient and convincing evidence for losses• In selecting employees, the “Last In – First Out” (LIFO) rule, though not statutory, has its merits. Selection is part of management’s prerogatives unless this is stipulated in a CBA for organized companies.• Separation Pay = one month pay or at least one-half month pay for every year of service, whichever is higher
  • CLOSURE OR CESSATION• Firm required to cease operations due to government mandate (i.e. acquisition of land for agrarian reform), firm suffering serious business decline and loss, or if firm owner wants to discontinue business for personal reasons, but in good faith, is allowed to close.• Cessation not due to business loss should meet the following conditions: (1) Written notice to employees and DOLE at least one month before intended date of termination; (2) Cessation from business operations must be bona fide in character; (3) Payment to the employees of termination pay amounting to at least one-half month pay for each year of service or one month pay, whichever is higher
  • ARTICLE 284. DISEASE AS GROUND FOR TERMINATIONDISCUSSION:A medical certificate issued by a competent public health authority is stillneeded for termination to take place even though disease does notwarrant the employee to continue working according to law or asconsidered detrimental to his own health or the health of his co-workers.A company physician is not considered a competent public healthauthority thus a certificate issued by him is not accepted as a basis fortermination of employment.
  • There are two facets of valid termination:1. Legality of the act of dismissal a. If found illegal, employee is entitled to reinstatement with backwages up to the time of his actual reinstatement if the contract of employment is not for a definite period. b. If found illegal, employee is entitled to payment of salaries corresponding to the unexpired portion of the employment contract.2. Legality in the manner of dismissal
  • DUE PROCESS IN AUTHORIZED CAUSES•Employer has to give though the employee and DOLEwritten notices thirty (30) days ahead of the projectedseparation.•The purpose for requiring a thirty-day written notice beforean employee is laid off is not to afford him opportunity to beheard on any charge against him, for there is none. Rather,this is done to give him time to prepare for the eventual lossof his job and the DOLE an opportunity to determinewhether economic causes do exist justifying termination.
  • “Termination of employment is not anymore a merecessation or severance of contractual relationship butan economic phenomenon affecting members of thefamily. This explains why, under the broad principles ofsocial justice, the dismissal of employees is adequately protected by the laws of the State.” (Alhambra Industries, Inc. vs. NLRC, Nov. 18, 1994, as cited by Chan, 2000)
  • ART. 247. Concept of unfair labor practice and procedure for prosecution thereof.Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. Consequently, unfair labor practices are not only violations of the civil rights of both labor andmanagement but are also criminal offenses against the State which shall be subject to prosecution and punishment as herein provided. Subject to the exercise by the President or by the Secretary of Labor and Employment of the powersvested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorney’s fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. TheLabor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. No criminal prosecution under this Title may be instituted without a final judgment finding that anunfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminaloffense herein penalized shall be considered interrupted: Provided, however, that the final judgment inthe administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth.
  • ART. 248. Unfair labor practices of employersIt shall be unlawful for an employer to commit any of the following unfair labor practice:(a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization;(b) To require as a condition of employment that a person or an employee shall not join a labor organization or shallwithdraw from one to which he belongs;(c) To contract out services or functions being performed by union members when such will interfere with, restrainor coerce employees in the exercise of their rights to self-organization;(d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization,including the giving of financial or other support to it or its organizers or supporters;(e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order toencourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stopthe parties from requiring membership in a recognized collective bargaining agent as a condition for employment,except those employees who are already members of another union at the time of the signing of the collectivebargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognizedcollective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid bymembers of the recognized collective bargaining agent, if such non-union members accept the benefits under thecollective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o)of this Code shall not apply to the non-members of the recognized collective bargaining agent;(f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being aboutto give testimony under this Code;(g) To violate the duty to bargain collectively as prescribed by this Code;(h) To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue incollective bargaining or any other dispute; or(i) To violate a collective bargaining agreement.The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations,associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall beheld criminally liable.
  • UNFAIR LABOR PRACTICES•refers to acts opposed to the right to organize or to engage in lawful concertedactivities for collective bargaining or for the workers’ mutual aid and protection•Two Elements – (1) Employer-employee relationship exists between the offenderand the offended; (2) Act done is expressly defined in the Code as an unfair laborpracticeThere are two (2) aspects, namely: (1) Civil; and (2) Criminal. Labor Arbitersshall have jurisdiction over the civil aspect of all cases involving unfair laborpractices, which may include claims for actual, moral, exemplary and other formsof damages, attorney’s fees and other affirmative relief. No criminal prosecutionmay be instituted without a final judgment finding that an unfair labor practicewas committed having been first obtained in the labor case.•Not every unfair act is an unfair labor practice.
  • UNFAIR LABOR PRACTICES1. INTERFERENCE, RESTRAINT OR COERCION – interference may be considered ULP even when it is committed before union is formally registered. Example of unlawful acts are dismissal of union members upon refusal to give up membership and dismissal of an employee allegedly for inefficiency, on account of her having joined a union or union activities.
  • UNFAIR LABOR PRACTICES2. Yellow dog contract - promise exacted from workers or prospective employees that they will not belong to or form a union if hired. If he does, he’ll lose his job. The typical yellow dog contract embodies the ff: representation by the employee that he is not a member of a labor organization, promise by the employee that he will not join a union, and a promise by the employee that upon joining a labor organization, he will quit his job.
  • UNFAIR LABOR PRACTICES3. SUBCONTRACTING - The act of an employer in having work or certain services or functions being performed by union members be contracted out is not generally an unfair labor practice act. It is only when the contracting out of a job, work or service being performed by union members will interfere with, restrain or coerce employees in the exercise of their right to self-organization that it shall be unlawful and shall constitute unfair labor practice. If the motive then is to prevent employees from organizing or to get rid of union members or to escape his statutory duty to bargain collectively with the employees’ bargaining representative, then the contracting becomes ULP.
  • UNFAIR LABOR PRACTICES4. COMPANY-DOMINATION OF UNION – manifested in the following forms: a. Initiation of the company union idea – either outright formation by the employer or its representatives, employee formation on outright demand or influence by employer, or managerially motivated formation b. Financial support to the union – defray union expenses or paying for lawyer’s fee c. Employer encouragement and assistance – immediately granting exclusive recognition even without checking if union has majority representation d. Supervisory assistance – soliciting membership, permitting union activities during work time or coercing employees to join union with threats of certain penalties
  • UNFAIR LABOR PRACTICES5. DISCRIMINATION – To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization.**Union security clause – any form of agreement which imposes upon employees the obligation to acquire or retain union membership at the expense of their employment upon failure to do so. (valid discrimination since favors unionism)
  • UNFAIR LABOR PRACTICES6. RETALIATION – To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code. Employer’s retaliation against employee regardless of employer’s purpose and regardless of the nature or subject matter of the employee’s testimony
  • UNFAIR LABOR PRACTICES7. To violate the duty to bargain collectively as prescribed by this Code8. To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute – part of Company Domination of Union9. To violate a collective bargaining agreement - but only if gross in character.
  • UNFAIR LABOR PRACTICES* The “totality of conduct doctrine” means that expressions of opinion by an employer, though innocent in themselves, may be held to be constitutive of unfair labor practice because of the circumstances under which they were uttered, the history of the particular employer’s labor relations or anti-union bias or because of their connection with an established collateral plan of coercion or interference.* A “runaway shop” is an industrial plant moved by its owners from one location to another to escape union labor regulations or state laws.* Closure – sale or closure of a business enterprise done with bad faith