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USJ-R Psychology 29 Prelim Lecture Notes in Employee Relations. 1st Sem 2014-2015

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  1. 1. Employee Relations Atty. HARVE B. ABELLA, Esq.
  2. 2. Definitions • Employee Relations: • The relationship between employer and employees in a non- unionized organization. • Labor Relations: • Employee-Employer Relations in a unionized Organization
  3. 3. DEFINITIONS "Employer" includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer. "Employee" includes any person in the employ of a particular employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.
  4. 4. DEFINITIONS • "Managerial Employee" is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, layoff, recall, discharge, assign or discipline employees. • Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but require the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of the labor code;
  5. 5. Models of Labor/Employee Relations
  7. 7. Perfect Model • Total congruence of employer’s & worker’s interest & goals. • NO CONFLICT. • Unitarian perspective where the organization is perceived as an integrated and harmonious whole with the ideal of “one happy family. • Management and other members of the staff share a common purpose, emphasizing mutual cooperation • Paternalistic approach • Demands loyalty to all employees, being predominantly managerial in its emphasis & applications. • Trade unions are deemed unnecessary since the loyalty between the employees & org. are considered mutually exclusive. • Idealistic & IMPRACTICAL
  9. 9. Polarized Model • Exact opposite of the PERFECT MODEL • Interests of labor & management are diametrically opposed to each other • MARXIST APPROACH
  10. 10. COOPERATIVE MODEL MANAGEMENT LABORCommonality of Interest
  11. 11. Cooperative Model • Conflictual interests but congruence of interest in common areas like profitability and survival of the organization • PLURALISTIC PERSPECTIVE • The org. is perceived as being made up of powerful and divergent subgroups each with its own legitimate loyalties and with their own set of objectives and leaders. • The role of management would lean less towards enforcing and controlling and more toward persuasion and coordination. • Trade unions are deemed as legitimate representatives of the employees; • Conflict is dealt with by collective bargaining
  13. 13. Co-optive Model • The interests of workers are subservient to management interests. • Almost similar to the Perfect Model • In perfect model, there is NO UNION • In Co-optive model, it is allowed to exist but it more of a “company union” where it signs a “sweetheart” contract with the management just for show with no substantial concessions.
  14. 14. OBSERVATIONS • Consistent with our democratic system, the COOPERATIVE MODEL is the one adopted by mainstream Trade Unions with employers. • Marxist approach is miniscule and insignificant.
  15. 15. EMPLOYEERELATIONS: Commonconceptsin unionized& non- unionizedorgs. Atty. Harve B. Abella, Esq.
  17. 17. • What is documentation? • Any record that is kept regarding an employee's performance or conduct – both positive and negative. Documentation may consist of copies of actual work products, written statements by or about employees, or your notes of meetings with employees. The record you keep when investigating alleged misconduct is also considered documentation.
  18. 18. • What should be documented? • You should document BOTH the positive and negative issues that come to your attention:
  19. 19. SUMMARY • DOCUMENTATION IS USED FOR: • Showing Patterns Career Development • Performance Evaluations • Probationary Determinations • Corrective Actions • Disciplinary Actions • Positive Feedback and Acknowledgement
  20. 20. SUMMARY • DOCUMENTATION SHOULD: • 1. Be a clear record of employee performance/conduct and/or a clear record of discussions regarding employee performance/conduct. • 2. Be factual and objective. • 3. Be timely (close to the date of the event being documented). • 4. Be dated and signed/initialed by the supervisor/manager. • 5. Be kept in the supervisor's file / HR file and consulted in the areas listed above.
  21. 21. SUMMARY • DOCUMENTATION SHOULD NOT: • 1. Be personal or subjective judgements or opinions. • 2. Be too informal or anecdotal (it may be used by others in conduct or performance cases), be too old (documentation should normally not be more than one year old). • 3. Be used unless it has been shared with the employee.
  22. 22. WHAT IS A 201 FILE?
  23. 23. What is to be included in a 201 File? THREE main categories of employment life cycle: 1. the hiring process 2. the employment period 3. the separation process.
  24. 24. Standard inclusions in a 201 File • Employee information sheet/Employee application form* • Employment contracts • Comprehensive resume or curriculum vitae* • Official transcript of records* • Certificates from previous employers* • Result of pre-employment examinations/Results of the hiring process* • Birth certificate*
  25. 25. Standard Inclusions in a 201 File • Marriage contract* • SSS Registrations/E1 Form* • SSS Loan Voucher* • HDMF Registrations/Online* • HDMF Loan Voucher* • PHIC Registrations/PMRF* • BIR Registration form (Those without TIN)/ BIR form 1902* • BIR update of taxpayer’s information (Those with previous employer)/BIR form 2305* • BIR form 2316 from previous employer (If employee was employed within the calendar year prior to date hired)*
  26. 26. Standard Inclusions in a 201 File • BIR change of home RDO (if home RDO is different from that of the company)/BIR form 1905* • Birth certificates of qualified dependents* • Other credentials (ATM Payroll Accounts, acknowledgements)* • Employee attendance sheet attached by DTRs* • Ledger of leave credits (Vacation and Sick Leaves) • Change of departments • Employment evaluations*
  27. 27. Standard Inclusions in a 201 File • Written reprimands/Incident reports* • Notice of promotions/Increase in salary rates* • Withholding tax certificates (BIR Form 2316)* • Resignation letter/Termination letter • Clearance form • Acknowledgement of receipt of quitclaim, withholding tax certificates, etc) • Other related documents
  30. 30. Regular Employment • Regular employment is one where, notwithstanding any written or oral agreement between the employer and employee to the contrary: • EE has been engaged to perform activities which are NECESSARY & DESIRABLE in the usual business or trade of the ER. (Art. 280, LCP) • EE has rendered at least ONE (1) YEAR of service, whether such service is continuous or broken, with respect to the activity in which he is employed and his employment shall continue while such activity exists (Art. 280, LCP) • The employee is allowed to work after a probationary period. (Art. 281, LCP) TEST OF REGULARITY: reasonable connection between the particular activity performed by the employee in relation to the usual business of the employer
  31. 31. Casual Employment • EE is engaged to perform activities which are not necessary or desirable in the usual trade or business of the ER • Work is merely incidental to the business of the ER and such work or service is for a definite period made known to the employee at the time of the engagement. (Art. 280, LCP) • A CASUAL EMPLOYEE MAY BECOME A REGULAR EMPLOYEE AFTER ONE YEAR OF SERVICE. (Conti vs NLRC, 271 SCRA 114) • 1 year= whether continuous or broken, with respect to the activity in which his employment shall continue while such activity exists. • PURPOSE: to give meaning to the constitutional guarantees of security of tenure and right to self-organization (Mercado vs NLRC, Sept 5 1991)
  32. 32. Project Employment • The employment of an employee has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the EE (Art. 280, LCP) • Where the employment of project employees is extended long after the supposed project has been finished, the employees are removed from the scope of project employees and are considered regular employees
  33. 33. P.E. requirements • DO No. 19, S 1997 1. Specific project phase thereof stated in the employment contract 2. Estimated date of completion of project or phase thereof likewise stated in the contract 3. Employee must have been dismissed every after completion of his project (gaps must be shown in his length of service) 4. There must be a report to the DOLE of his dismissal on account of completion of contract
  34. 34. SEASONAL EMPLOYMENT • Seasonal employment is one where the work or service to be performed by the employee is seasonal in nature and employment is for the duration of the season (Art. 280, LCP) • A seasonal employee may become regular after one year of service. Once he attains such regularity, he is properly to be called “Regular Seasonal Employee) – Abasolo vs NLRC, GR No. 118475 • During off season, the relationship of the EE and ER is not severed, the seasonal employee is merely considered on leave of absence without pay. • Seasonal workers who are repeatedly engaged from season to season performing the same tasks are deemed to have acquired regular employment
  35. 35. Fixed-term (contract employees/contractual) Employment• ALSO KNOWN AS TEMPORARY EMPLOYMENT • EE is engaged to work on a specific project or undertaking which is usually necessary or desirable in the usual business or trade of the employer. The completion of which has been determined at the time of the engagement of the employee • The employment of an employee is covered by a fixed contract of employment • Employment that will last for a definite period, as agreed by the parties • Criteria • Fixed period was knowingly and voluntarily agreed by the parties • Parties dealt with each other on more or less equal terms
  36. 36. Probationary Employment • Probationary employment is one where the employee is on trial by employer during which the employer determines the qualifications of the employee for regular employment • GEN RULE: the probationary period should not exceed 6 months (6 months consists of 180 days – Mitsubishi Motors vs Chrysler Phils. Labor Union, June 29, 2004) • Standards should be made known to the employee at the start of the engagement otherwise, EE is deemed a regular employee from day one • If no stipulation on probationary period, employment is deemed regular • An EE who is allowed to work after probationary period is considered a regular employee
  37. 37. Probationary Employment (cont) • Exceptions to the period requirement: • Apprenticeship agreement • When the parties to an employment agreement agree otherwise • When the same is established by company policy • When the same is required by the nature of work to be performed
  38. 38. Probationary Employment (cont) •DOUBLE OR SUCCESSIVE PROBATION NOT ALLOWED •The evil sought to be prevented is to discourage scheming Ers from using the system of double or successive probation to circumvent the mandate of the law on regularization and make it easier for them to dismiss their employees (Holiday Inn Manila vs NLRC, September 14, 1993)
  39. 39. TERMINATION OF PROBATIONARY EMPLOYMENT • PROBATIONARY EE are protected by the security of tenure provision of the constitution. However, a probationary employee may be terminated at any time before the expiration of the probationary period on two (2) grounds: • 1. JUST CAUSE • 2. FAILURE TO MEET THE STANDARDS FOR QUALIFICATIONS OF REGULAR EMPLOYMENT • Nb: probationary ee is entitled to procedural due process
  40. 40. • The purpose of the probationary period is to allow the employer to make a determination regarding the employee’s ability to perform at a satisfactory level and to conform to acceptable norms of conduct. It is important to provide employees who are in their probationary period with training, guidance and counseling to assist them in reaching and maintaining a successful level of performance. It is also important to closely monitor the performance and conduct of probationary employees so that a determination can be made regarding conversion to permanent status.
  41. 41. • What are your responsibilities during a probationary period? • You are responsible for communicating performance and conduct standards and expectations to the employee, monitoring their performance and conduct against those standards and providing timely feedback. In addition to ongoing oral and written feedback, the probationary employee should receive a performance evaluation. This is a formal, written evaluation based on the duties as described in the employee’s classification description, or in other instructions provided to the employee (i.e. departmental procedures, quantity/quality standards, etc.). An employee who is serving a six month probationary period would receive one evaluation after three months of service, and one as she/he approaches six months.
  42. 42. Outsourcing
  43. 43. definitions • 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
  44. 44. definitions • 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
  45. 45. DEFINITIONS • PRINCIPAL - refers to any employer, whether a person or entity, including GOCC's, who/which puts out or farms out a job, service or work to a contractor
  46. 46. LEGITIMATE LABOR CONTRACTING 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)
  48. 48. Legitimate Labor Contracting • Conditions precedent • The principal must have a written contract for a specific job, work or service with the contractor • Contractor must have a written contract with its contractual employees • Contractor must be registered/listed with the DOLE • Contractor must have substantial capital or investment which relates to the job, work or service to be performed • Refers to the capital stocks and subscribed capitalization (corporations) • Tools, equipment, implements, machineries and work premises, actually and directly used by the contractor in the performance of the job contracted out
  50. 50. PERFORMANCE VS CONDUCT • Employee expectations fall into two categories - Performance and Conduct. • PERFORMANCE expectations relate to the employee’s job classification or job assignment and include the quantity, quality, accuracy and timeliness of work products. • CONDUCT expectations are work rules that relate to employee behavior. Examples include adhering to work hours, proper use and reporting of time, honesty, and interactions with clients and co-workers, to name a few.
  51. 51. • What is the difference between performance and conduct? • In general, performance relates to the quantity, quality, accuracy and timeliness of work products. • Conduct issues relate to compliance with work rules. Performance problems usually involve a “can’t do” issue while conduct problems generally involve a “won’t do” issue. • Conversely, if an employee is frequently late or absent (won’t do), it is usually not because he/she lacks the training, ability or experience to report to work. Counseling and corrective action, rather than training is usually appropriate.
  52. 52. • Why do we make a distinction between performance and conduct? • Conduct and performance are handled differently in terms of the corrective action process.
  53. 53. CORRECTIVE ACTION & DISCIPLINARY ACTION • Corrective action and disciplinary action are two terms that you will encounter in dealing with performance and conduct issues. Although corrective action may lead to discipline, they are not the same. • What is corrective action? • Corrective action is the process the supervisor begins when an employee's performance or conduct is first identified as needing improvement. Normally, the first step in corrective action is bringing the issue to the employee's attention (counseling), and suggesting ways to "correct" the problem
  54. 54. • The intent of corrective action is to assist employees in correcting their performance and/or conduct to meet expectations. • Corrective action includes verbal counseling, written counseling memos, corrective action plans, letters of warning, leave restriction letters, and letters of reprimand. • For Performance problems, performance evaluations may also be considered corrective action.
  55. 55. • What is disciplinary action? • Disciplinary action is taken when corrective action has not caused the employee to correct his/her performance to an acceptable level. Disciplinary action may be taken without prior corrective action when an employee’s performance or conduct is so egregious or serious that informal corrective action is not an appropriate response. • Disciplinary action includes suspensions, temporary reductions in step, demotions, dismissals and disciplinary letters that equate to a suspension ("non-punitive discipline").
  56. 56. • What is non-punitive discipline? • Non-punitive discipline is a program that replaces unpaid suspensions with a disciplinary letter that equates to a suspension, thereby establishing that there has been previous discipline if misconduct occurs again. Positive aspects of non- punitive discipline from management's perspective are that the employee does not actually leave the workplace, thereby avoiding the disruption to workflow and cost to fill in behind the employee. Positive aspects from the employee's perspective are that no money is lost, and the "rehabilitation plan" which, if successfully completed, results in removal of the disciplinary letter within a specific period of time.
  58. 58. • Consistent attention to the employee's performance allows positive reinforcement of desired work habits and early identification and correction of bad work habits and performance problems.
  59. 59. What is the supervisor's /HR’s responsibility regarding employee performance? • First, clearly communicate your expectations. These expectations may include written performance standards for the position as well as specific objectives for the individual employee. • You may also want to give the employee their job specification, any department specific job description which has been developed, departmental handbooks, etc.
  60. 60. Following this initial discussion, your responsibilities are to: • Discuss specific objectives, due dates, timeliness, and quality and quantity standards in one-on-one conversations and in group meetings with employees, and confirm specific objectives in writing prior to the beginning of each review period. • Meet with individual employees regularly to discuss their progress, both positive and negative. • Counsel when minor performance concerns come to your attention. • Prepare written evaluations every three months for probationary employees, and on an annual basis for all other employees.
  61. 61. What are performance expectations? • Performance expectations are the standards for the position and the objectives for the individual employee. • Expectations often have two aspects: • 1) the quantity or timeliness of work products, and • 2) the quality or accuracy of those products.
  62. 62. What should be done if an employee is not meeting performance expectations? • Formally counsel the employee, giving specific examples of where he/she is not meeting the performance standard(s). • Refer to any previous informal counseling sessions that were held and ask the employee if he/she understands the area of concern. It is usually a good idea to have the employee state back to you what the problem is and what you expect so there is no confusion.
  63. 63. • Document the results of the counseling session to writing, and share this memo with the employee. • The counseling memo should clearly outline your concerns, the employee’s response (if any), what the employee has to do to improve, and the steps you will take to assist her or him. • Meet with the employee on a regularly scheduled basis, giving specific assignments and deadlines and providing feedback on his/her progress. Document these meetings in writing and give the employee a copy.
  64. 64. • If the employee does not improve, complete a formal performance evaluation
  65. 65. How does the supervisor know what to do next, and when to do it?• In performance cases, there are two options - demotion or dismissal. • If an employee has the skills and abilities to do a less complex job, demotion is the preferred option, especially if the employee has previously held a lower classification, unless the current level of performance indicates an inability to perform even the simplest portions of the current position. • If the employee's deficiencies demonstrate that demotion is not a viable alternative, the choice would be dismissal.
  67. 67. CONDUCT
  68. 68. • Conduct cases are those where an employee fails to comply with work rules, policies, and procedures such as arriving for work on time; treating clients and co-workers with courtesy and respect; being honest; maintaining a good attendance record; following procedures for requesting time off; using company time, supplies and property in a responsible manner; and other similar behavior-related areas. • Violations of these work rules, policies and procedures can form the basis for corrective, and ultimately disciplinary action, including dismissal.
  69. 69. What is the HRD’s / supervisor's responsibility regarding employee conduct? • First, you must clearly communicate your expectations. • Every employee must have a copy of the Company Code of Conduct / Rules Regulation / Company Policies • Supervisors are also responsible for monitoring employees’ conduct and for providing honest and timely feedback when an employee fails to meet expectations.
  70. 70. What should be done if an employee does not adhere to conduct expectations? • The first step is to conduct an investigation. If you have personally observed the misconduct (e.g. an employee arrives late for work), the investigation may consist of a simple interview of the employee to get his/her side of the story. • When minor misconduct occurs for the first time (e.g. an employee is late arriving for work), and the interview of the employee does not indicate mitigating or extenuating circumstances which would excuse the offense, verbal counseling is usually sufficient.
  71. 71. How does the supervisor / HR know what to do next, and when to do it? • Following the concept of Progressive Discipline, you will take the lowest level of corrective/disciplinary action that will be likely to correct the problem. In determining the level of action to take, you will look at the following factors: • 1) The seriousness of the offense and the relationship to the employees duties • 2) The employees position and level of responsibility (i.e., supervisory etc) • 3) The employee's past disciplinary record • 4) The employee's past work record and years of service • 5) The effect of the offense on the supervisor's confidence in the employee • 6) The consistency of the penalty with that imposed on other employees • 7) The clarity with which the employee was placed on notice • 8) The potential for rehabilitation • 9) Any mitigating circumstances (provocation by others, etc.)
  72. 72. What is progressive discipline? • One of those factors is whether the level of discipline that was taken was appropriate under the circumstances. In making this determination, the arbitrator expects to see that any serious discipline was preceded by lesser discipline to place the employee on notice that the conduct is unacceptable and that more severe discipline may result if the conduct is not corrected. • This does not mean that every infraction must go through every step of the corrective action process. • Some forms of misconduct, such as theft, may warrant dismissal on the first offense.
  73. 73. NON-PUNITIVE DISCIPLINE PROGRAM DESCRIPTION • When an employee's conduct warrants corrective action, the supervisor/manager takes the lowest level of disciplinary action which: • 1) is appropriate to the severity of the employee's offense; and • 2) is likely to result in the employee not repeating the misconduct. • Under a traditional discipline program, minor misconduct (e.g., initial instances of tardiness or absenteeism) is normally dealt with through counseling confirmed in writing. Should the misconduct be repeated, the normal progression is a letter of reprimand followed by a suspension. Further misconduct may result in a second suspension, demotion, or dismissal. Misconduct of a more serious nature may result in suspension, demotion, or dismissal on the first offense.
  74. 74. • The Non-Punitive Discipline Program follows the same steps as a traditional program with one exception – unpaid suspensions are replaced by disciplinary letters that equate to a suspension of a specified number of days.
  75. 75. Objectives of a Non-Punitive Discipline Program • The overall goal of the Non-Punitive Discipline Program is to improve productivity in the workplace by: • • Correcting conduct problems promptly, rationally and constructively • • Alleviating the financial impact of discipline on employees' families • • Affording employees the ability to be rehabilitated and to clear their records • • Taking corrective action which is just, equitable and sustainable
  76. 76. HOW A NON-PUNITIVE DISCIPLINE PROGRAM WORKS • A Non-Punitive Discipline Program is designed to help correct conduct and attendance problems by serving as a step in progressive discipline. • Normally, a Non-Punitive Discipline Program will not be used to correct performance problems (quantity/quality of work). • Performance problems are dealt with through counseling, corrective action plans with performance-specific objectives and outcomes, and performance evaluations.
  77. 77. Schematic diagram
  78. 78. • Investigation - When an incident of misconduct or an attendance problem has been investigated and reasonable proof has been found, the department makes a determination regarding the appropriate level of discipline. If it is determined that the infraction does not warrant demotion or dismissal, but does warrant more than counseling or a letter of reprimand, the non-punitive discipline program will be used.
  79. 79. • Intent Letter - A Skelly letter of intent is issued to the employee stating that it is the intent of the department to issue a disciplinary letter equating to a suspension of X days. • This letter takes the same form as the usual Skelly letter but, instead of proposing a suspension, proposes a disciplinary letter equating to a suspension.
  80. 80. • Oral/Written Response - The normal Skelly process is followed, with the employee having the opportunity to make an oral and/or written response to the charges in the intent letter. • a. If the employee presents information which causes the department head to determine that the disciplinary letter is not warranted, the case will be closed with a letter of reprimand, a warning letter, or a letter clearing the employee of the charges, as appropriate. • b. If the department head determines that the disciplinary letter is warranted, he/she will issue a decision letter, imposing the disciplinary letter in lieu of a suspension. The decision letter itself constitutes the disciplinary letter and a separate disciplinary letter is not issued.
  81. 81. • The management official hearing the oral response determines, based on the employee's response and by asking questions, whether the employee acknowledges that the misconduct for which he/she is being disciplined was improper, and whether it is the employee's intent not to repeat the misconduct.
  82. 82. REHAB OR NO REHAB? • 1. If the employee acknowledges that his/her misconduct was improper, and indicates the intent not to repeat the misconduct, a rehabilitation plan is developed. • This plan will list actions the employee will take and/or training the employee will attend to ensure that the misconduct does not recur. • The plan will also set a timeframe during which misconduct must not recur. • Once the actions laid out in the rehabilitation plan are completed and the agreed upon timeframe has elapsed without further misconduct, the disciplinary letter will be removed from the employee's personnel files. At this point, the matter will be closed and the employee will be considered fully rehabilitated.
  83. 83. • 2. If the employee does not acknowledge that his/her misconduct was improper, and/or does not indicate the intent not to repeat the misconduct, no rehabilitation plan will be developed, and the letter will remain in the employee's personnel files.
  86. 86. Source of Allegations of EE misconduct • You will not personally witness every act of misconduct alleged to have been committed by your employees. Allegations of employee misconduct can come from a variety of sources. • MOST COMMON SOURCES: • CO-WORKERS (superiors, subordinates, etc) • CUSTOMERS/CLIENTS
  87. 87. What is your role in the area of EE investigations? • You are responsible for recording the allegation in as factual and complete a manner as possible, asking the source of the allegation such questions as: • 1. What occurred? • 2. When did it happen (time/date)? • 3. Were there any other witnesses to the event? • 4. Any other details pertinent to the complainant’s observation of the event. • When the investigation is the result of an allegation, try to get written statement from the reporting party.
  88. 88. Shouldtheemployeeberemovedfromthework areaduringtheinvestigation? • In some circumstances, it may be appropriate for the accused employee to be away from the work location during the investigation. In determining whether to leave the accused employee in the work area, assign them to work at home, or to assign them to another location/set of duties, the following should be considered: • • Could the accused hinder the investigation by corrupting data or removing/destroying other evidence? • • Could the accused cause further harm if left in their current position? • • Is the accused a potential danger to others?
  89. 89. Preventive Suspension • The right of employer to impose preventive suspension is not found in the Labor Code itself. The oft-cited legal basis for imposition of preventive suspension is Section 8 and Section 9 of Rule XXIII, Book V, of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997, • Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. • Section 9. Period of suspension. No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker.
  90. 90. Your responsibility if the allegation is of criminal action?• Document the allegation accurately and completely. Take careful, legible notes of what the complainant says, your own follow-up questions, and the answers to these questions. • Immediately notify your manager and if possible, legal counsel
  91. 91. Supervisor’s/HR’sresponsibilitywhenthe allegedmisconductisof anon-criminalnature? • After getting the initial information, the supervisor should: • 1. Contact HR for guidance on planning the investigation. • 2. Develop a list of questions or issues that need to be answered to determine if the allegation is true. • 3. Make a list of potential witnesses who may help answer those questions. • 4. Make a list of documents (e.g. time cards, work products, written policies) to be reviewed. • 5. The next step is usually to interview the employee who is the subject of the allegation. (if you are a supervisor) This may not always be the best strategy, and your initial consultation with HR will cover this aspect of your investigative plan. • Note: The employee who is the subject of the allegation, and any other employees you interview as witnesses have a right to union / legal representation if they request it. • 6. Maintain a legible and orderly file of all materials assembled during the investigation. This includes your interview notes, documents reviewed, and any written statements from the complainant or witnesses. This file, known as the investigatory file, will form the basis for any disciplinary action that may result from the investigation and will be relied on to support any such action.
  92. 92. What is the investigatory file used for? • The materials in the file will be reviewed to determine whether there is sufficient proof to sustain the allegation and, if so, to determine what level of action should be taken. If disciplinary action is initiated as a result of the investigation, the file becomes the "material relied on" in taking the disciplinary action. • Once an employee receives the Skelly letter proposing discipline, he/she and the union has a right to obtain and/or review all of the materials which were “relied on” in proposing the action. It is critical that this material be assembled and copied prior to issuance of the intent letter so it can be given to the employee if they request it.