Termination Of Employment


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Report on the ILO Termination of Employment Legislation Digest by Maam Lumanglas for the IR 207.2 class (October 6, 2007)

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  • hi there! my name is bernardo,I just want to ask if my wife has a chance to returned in her work in a local govt unit.shes been working there for almost 19 years as a casual employee and the new elected official won and terminate my wife without any valid reason.Somebody told to the elected official that my wife is conducting a campaigned to the encumbent local official but the truth is the sister of my wife is the one who did a campaigned.Can my wife filed a complain and where ca she filed?
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Termination Of Employment

  1. 1. Article 287, Title II, Book 6, Labor Code Retirement from the Service Presented by: Maam Lumanglas IR 207.2, UP-SOLAIR, 29 September 2007
  2. 2. ILO Termination of Employment Legislation Digest Report by: Maam Lumanglas IR 207.2, UP-SOLAIR, 6 October 2007
  3. 3. The ILO Termination of Employment Legislation Digest <ul><li>A collection of the legal regulation on termination of employment in more than 70 countries </li></ul><ul><li>Aims at establishing a set of national and comparative information </li></ul><ul><li>Deals exclusively with employees in the private sector </li></ul>
  4. 4. The ILO Termination of Employment Legislation Digest <ul><li>CENTRAL OBJECTIVES </li></ul><ul><li>To provide an international overview of legislation on termination of employment </li></ul><ul><li>To provide an introductory summary of the legislation on termination of employment of each of the countries </li></ul>
  5. 5. Philippines Updated in June 2006 by Atty. Jonathan P. Sale
  6. 7. The ILO Termination of Employment Legislation Digest <ul><li>Format of Summaries of National Legislation </li></ul><ul><ul><li>Sources of Legislation </li></ul></ul><ul><ul><li>Scope of Legislation </li></ul></ul><ul><ul><li>Contracts of Employment </li></ul></ul><ul><ul><li>Termination of Employment </li></ul></ul><ul><ul><li>Dismissal </li></ul></ul><ul><ul><li>Notice and Procedural Standards </li></ul></ul><ul><ul><li>Severance Pay </li></ul></ul><ul><ul><li>Avenues for Redress </li></ul></ul>
  7. 8. 1 Sources of Legislation -- Legislative sources of regulation regarding termination of employment
  8. 9. PHILIPPINES <ul><li>Constitution </li></ul><ul><ul><li>Affirms labour as a primary social and economic force and mandates the State to protect workers’ rights and welfare </li></ul></ul><ul><ul><li>Workers have the right to security of tenure </li></ul></ul><ul><li>Labor Code – Book VI </li></ul><ul><ul><li>Sets out specific provisions governing termination of employment </li></ul></ul><ul><li>Civil Code </li></ul><ul><ul><li>also applicable in certain situations </li></ul></ul>
  9. 10. United States of America <ul><li>One of the few countries in the world that still embraces the employment at-will concept </li></ul><ul><ul><li>However, a pure practice of this doctrine has been eroded somewhat by jurisprudence </li></ul></ul><ul><li>Statutes concerning protection from discriminatory treatment on various grounds </li></ul><ul><ul><li>National Labour Relations Act </li></ul></ul><ul><ul><li>Civil Rights Act of 1964 </li></ul></ul><ul><ul><li>1967 Age Discrimination in Employment Act </li></ul></ul><ul><ul><li>1974 Pregnancy Discrimination Act </li></ul></ul><ul><ul><li>Americans with Disabilities Act of 1990 </li></ul></ul><ul><ul><li>Sarbanes-Oxley Act of 2002 (protects “whistleblowers”) </li></ul></ul>
  10. 11. United Kingdom <ul><li>Law governing contracts of employment derives from three main sources: common law, statute, and law of the European Community </li></ul><ul><ul><li>Statutes include: </li></ul></ul><ul><ul><li>Employment Rights Act 1996 </li></ul></ul><ul><ul><li>Trade Union and Labour Relations Act </li></ul></ul><ul><ul><li>Employment Act 2002 </li></ul></ul><ul><ul><li>Employment Relations Act 2004 </li></ul></ul><ul><ul><li>Transfer of Undertakings (Protection of Employment) Regulations 2006 </li></ul></ul><ul><li>Special provisions under collective agreements may achieve legal effect if they are incorporated into individual contracts of employment </li></ul>
  11. 12. BRAZIL <ul><li>Constitution of the Federal Republic of Brazil of 1988 </li></ul><ul><ul><li>contains comprehensive provisions on the rights of workers, security of tenure and protection against arbitrary dismissal </li></ul></ul><ul><li>Consolidation of Labour Laws (1943) </li></ul><ul><ul><li>contains standards of substantive and procedural law on termination of employment </li></ul></ul><ul><li>Act No. 8036 of 11 May 1990 </li></ul><ul><ul><li>additional source of labour law dealing with compensatory indemnification for termination of employment by the employer </li></ul></ul><ul><li>Supplemented by the decisions of the labour courts and arbitration awards, international treaties and case law </li></ul>
  12. 13. SINGAPORE <ul><li>Employment Act </li></ul><ul><ul><li>adopted in 1968 and lastly amended in 1995 </li></ul></ul><ul><li>Industrial Relations Act, adopted in 1960 and lastly amended in 2002 </li></ul><ul><li>Collective agreements or individual contracts of employment may contain provisions governing the termination of employment </li></ul><ul><li>Tripartite Guidelines on Managing Excess Manpower </li></ul><ul><ul><li>aimed at improving corporate practice and industrial relations in case of retrenchment </li></ul></ul>
  13. 14. 2 Scope of Legislation -- Persons covered and excluded -- Industrial, sectoral or occupational exclusions
  14. 15. PHILIPPINES <ul><li>The provisions of the Labor Code governing termination of employment apply to all private sector employees , whether employed by a profit-making enterprise or not </li></ul><ul><ul><li>The Civil Service Law, rules and regulations cover those employed in the public sector </li></ul></ul><ul><li>Security of tenure </li></ul><ul><ul><li>The right not to be removed from a job without valid cause and procedure </li></ul></ul><ul><ul><li>Extends to regular (permanent) and non-regular (temporary) employment, and managerial and rank & file employees </li></ul></ul><ul><ul><li>Probationary employees also enjoy security of tenure </li></ul></ul>
  15. 16. United States of America <ul><li>Federal statutes: </li></ul><ul><li>Generally apply to employers having a certain minimum number of employees </li></ul><ul><li>Are supplemented in many of the fifty states by similar legislation that covers smaller employers, as well as by state and local government </li></ul>
  16. 17. United Kingdom <ul><li>Each act only offers coverage after employees spend differing qualifying periods in employment </li></ul><ul><ul><li>E.g., Protection against unfair dismissal requires that one be employed for at least one year </li></ul></ul><ul><li>Protection under the Employment Rights Act does not extend to: </li></ul><ul><ul><li>individuals whose employment lasts for less than one month </li></ul></ul><ul><ul><li>employees of normal retirement age </li></ul></ul><ul><ul><li>police officers </li></ul></ul><ul><ul><li>share fishermen </li></ul></ul><ul><ul><li>members of the naval, military and air forces of the Crown </li></ul></ul>
  17. 18. BRAZIL <ul><li>Public employees are excluded from the scope of application of the Consolidation of Labour Laws </li></ul><ul><li>Subject to special labour protection rules are: </li></ul><ul><ul><li>Persons employed in the banking and cinematography industries, the telephone services, musicians, railway workers </li></ul></ul><ul><ul><li>crews of vessels of the national merchant marine and vessels engaged in river and lake navigation </li></ul></ul><ul><ul><li>workers employed in cold storage, stevedoring and dockers’ services </li></ul></ul><ul><ul><li>miners, journalists, teachers, chemists </li></ul></ul><ul><ul><li>women workers and young persons </li></ul></ul>
  18. 19. SINGAPORE <ul><li>The Employment Act covers all the employees, regardless of nationality </li></ul><ul><ul><li>wide definition of “employee” includes all persons who have entered into work under a contract of service with an employer </li></ul></ul><ul><li>Excludes: </li></ul><ul><ul><li>seafarers, domestic workers, security guards </li></ul></ul><ul><ul><li>any employee in managerial, executive or confidential positions </li></ul></ul><ul><ul><li>people employed by a Statutory Board or the Government </li></ul></ul>
  19. 20. 3 Contracts of Employment -- Employment security against arbitrary dismissals -- Controls on the termination of atypical and contingent forms of employment (part-time work, fixed term contracts & temporary contracts)
  20. 21. PHILIPPINES <ul><li>There are four tests to ascertain the existence of an employer-employee relationship: </li></ul><ul><ul><li>Manner of selection and engagement </li></ul></ul><ul><ul><li>Payment of wages </li></ul></ul><ul><ul><li>Presence or absence of the power of dismissal </li></ul></ul><ul><ul><li>Presence or absence of the power of control </li></ul></ul><ul><ul><ul><li>the most important </li></ul></ul></ul>
  21. 22. PHILIPPINES <ul><li>Categories of employment: </li></ul><ul><li>Project </li></ul><ul><ul><li>employment has been fixed for a specific project or undertaking </li></ul></ul><ul><ul><li>the completion or termination has been determined at the time of the engagement of the employee </li></ul></ul><ul><li>Seasonal </li></ul><ul><ul><li>the work or service to be performed is seasonal in nature and the employment is for the duration of the season </li></ul></ul><ul><li>Casual </li></ul><ul><ul><li>an employee who has rendered at least one year of service shall be considered regular with respect to the activity in which he or she is employed and his or her employment shall continue while the activity exists </li></ul></ul>
  22. 23. PHILIPPINES <ul><li>“ Term” or “Fixed-Period Employment” </li></ul><ul><ul><li>Another category of employment recognized in jurisprudence </li></ul></ul><ul><ul><li>Obligations with a resolutory period take effect at once, but terminate upon arrival of the “ day certain” (a day that must necessarily come) </li></ul></ul><ul><ul><li>The decisive determinant should not be the activities that the employee is called upon to perform, but the day certain agreed upon by the parties for the commencement and termination of the employment relationship </li></ul></ul><ul><ul><li>Stipulations in employment contracts providing for “term employment” or “fixed-period employment” are valid when the period has been agreed upon knowingly and voluntarily by the parties, without force, duress or improper pressure exerted on the employee, and when such stipulations were not designed to circumvent the laws on security of tenure </li></ul></ul>
  23. 24. PHILIPPINES <ul><li>Probationary employment </li></ul><ul><li>Not necessarily a category of employment, but pertains to a period of time </li></ul><ul><li>An employee who is allowed to work after a probationary period shall be considered a regular employee </li></ul><ul><li>A probationary employee is, for a given period of time, under observation and evaluation to determine whether or not he or she is qualified for permanent employment </li></ul>
  24. 25. United States of America <ul><li>Federal legislation does not distinguish between the various types of employment contracts in relation to termination of employment </li></ul><ul><ul><li>If the nature or duration of employment is not specified in a contract, the employee or employer may, with a few exceptions, terminate the relationship for any reason, or for no reason at all. </li></ul></ul><ul><ul><li>* This is the basis of the employment at-will doctrine </li></ul></ul><ul><li>As regards the contracts of employment concluded for a specific period of time, the courts have established the general principle that: </li></ul><ul><ul><li>termination of a fixed-term employment contract prior to its completion is justified only for good cause </li></ul></ul>
  25. 26. United Kingdom <ul><li>A contract of employment refers to a contract of service or apprenticeship </li></ul><ul><ul><li>The contract of employment can be expressed or implied, oral or in writing   </li></ul></ul><ul><ul><li>In addition to contracts of indefinite duration, there are fixed, short-term, probationary, and apprenticeship contracts </li></ul></ul><ul><li>The Fixed-term Employees Regulations 2002 established that individuals with fixed-term contracts that have previously been renewed are to be treated as permanent employees </li></ul>
  26. 27. BRAZIL <ul><li>An individual contract of employment is a tacit or express agreement respecting the employment relationship </li></ul><ul><ul><li>Such contracts may be concluded either orally or in writing, for a specified or unspecified period </li></ul></ul><ul><li>A contract for a specified period is a contract in which duration is fixed in advance or which depends upon the performance of specified services or on the occurrence of a particular event, the approximate date of which can be foreseen </li></ul><ul><ul><li>Contracts for a specified period are valid only if they govern services whose nature or transitional character justifies the fixing of their duration in advance, transitional activities carried out by the undertaking, and contracts of a probationary nature </li></ul></ul>
  27. 28. SINGAPORE <ul><li>The Employment Act defines the contract of employment as “contract of service” </li></ul><ul><ul><li>any agreement, whether in writing or oral, express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his/her employer as an employee, and includes an apprenticeship contract </li></ul></ul><ul><li>A contract for a specified piece of work or for a specified period of time is to terminate when the work is completed or the period expires </li></ul>
  28. 29. 4 Termination of Employment -- Termination of employment which is not at the employer’s initiative
  29. 30. PHILIPPINES <ul><li>No involuntary servitude in any form shall exist except as punishment for a crime whereof the party shall have been duly convicted </li></ul><ul><li>An employee is given the right to resign </li></ul>
  30. 31. PHILIPPINES <ul><li>Two kinds of resignation: </li></ul><ul><ul><li>without cause </li></ul></ul><ul><ul><li>with cause </li></ul></ul><ul><li>If the resignation is without cause, the employee is required to give a 30-day advance written notice to the employer, to enable the employer to look for a replacement to prevent work disruption </li></ul><ul><li>If the employee fails to give a written notice, he or she runs the risk of incurring liability for damages </li></ul>
  31. 32. PHILIPPINES <ul><li>Just causes for resignation (with cause): </li></ul><ul><ul><li>Serious insult to the honor and person of the employee </li></ul></ul><ul><ul><li>Inhuman and unbearable treatment (the employee need not serve a written notice) </li></ul></ul><ul><ul><li>Crime committed against the person of the employee or any of the immediate members of the employee’s family </li></ul></ul><ul><ul><li>Other analogous causes </li></ul></ul><ul><li>Forced resignation is not allowed and is considered “constructive” dismissal or a dismissal in disguise </li></ul><ul><li>Employee retirement is either voluntary or compulsory </li></ul>
  32. 33. United States of America <ul><li>No federal law specifically applies to employee-initiated termination of employment </li></ul><ul><ul><li>although the thirteenth amendment to the United States Constitution prohibits involuntary servitude </li></ul></ul><ul><li>The employee could face civil charges if his or her (employee-initiated) termination breaches a contract </li></ul>
  33. 34. United Kingdom <ul><li>Employment relationship may be terminated by mutual agreement of the parties concerned </li></ul><ul><ul><li>Contracts of employment may also be frustrated by: </li></ul></ul><ul><ul><ul><li>an event external to the parties that renders the further performance of the contract impossible </li></ul></ul></ul><ul><ul><ul><li>operation of law </li></ul></ul></ul><ul><ul><ul><li>death of the employee or employer </li></ul></ul></ul><ul><li>The employee is entitled to terminate an employment contract at will (by the provision of due notice), unless otherwise agreed in the contract </li></ul><ul><ul><li>The employee must typically give one week’s notice if he or she chooses to terminate the contract </li></ul></ul><ul><ul><li>Under common law, if the employer breaks a fundamental term of the contract, the employee is not required to give any notice </li></ul></ul>
  34. 35. BRAZIL <ul><li>Other than at the initiative of the employer, Employment may be terminated as follows: </li></ul><ul><ul><li>by the worker </li></ul></ul><ul><ul><li>for reasons unrelated to the wishes of the parties </li></ul></ul><ul><ul><li>through the operation of law </li></ul></ul><ul><ul><li>by mutual consent of the parties </li></ul></ul><ul><ul><li>upon the retirement or death of the worker </li></ul></ul><ul><ul><li>on expiry of the contract period or completion of the task </li></ul></ul>
  35. 36. SINGAPORE <ul><li>Indefinite contracts of employment may terminate upon either party giving notice </li></ul><ul><li>An employee may terminate employment immediately if salary is not paid, or if the employee or his or her dependants are threatened by violence or disease </li></ul>
  36. 37. 5 Dismissal -- Dismissals specified as invalid and justified -- Substantive standards to be applied to dismissals
  37. 38. PHILIPPINES <ul><li>The employer may terminate the services of an employee for just or authorized causes </li></ul><ul><ul><li>the employer has the burden of proving the lawfulness of the employee’s dismissal in the proper forum </li></ul></ul><ul><li>Just causes are blameworthy acts on the part of the employee such as: </li></ul><ul><ul><li>serious misconduct </li></ul></ul><ul><ul><li>willful disobedience </li></ul></ul><ul><ul><li>gross & habitual neglect of duties </li></ul></ul><ul><ul><li>fraud or willful breach of trust </li></ul></ul><ul><ul><li>commission of a crime </li></ul></ul><ul><ul><li>other analogous causes </li></ul></ul>
  38. 39. PHILIPPINES <ul><li>Authorized causes are of two types: </li></ul><ul><li>Business reasons </li></ul><ul><ul><li>Installation of labour-saving devices </li></ul></ul><ul><ul><li>Redundancy </li></ul></ul><ul><ul><li>Retrenchment </li></ul></ul><ul><ul><li>Closure or cessation of operation </li></ul></ul><ul><li>Disease </li></ul><ul><ul><li>Before the employer can terminate on the ground of disease, he must obtain from a competent public health authority a certification that the employee’s disease is of such a nature and at such a stage that it can no longer be cured within a period of six months even with medical attention </li></ul></ul>
  39. 40. PHILIPPINES <ul><li>Those hired on a temporary basis </li></ul><ul><ul><li>Hired for a “term” or “fixed period” </li></ul></ul><ul><ul><li>Not regular employees, but “contractual employees” </li></ul></ul><ul><li>There is no illegal dismissal when their services are terminated by reason of the expiration of their contracts </li></ul><ul><li>Lack of notice of termination is of no consequence, because a contract for employment for a definite period terminates by its own term at the end of such period </li></ul>
  40. 41. PHILIPPINES <ul><li>An illegal strike can be cause for termination of employment </li></ul><ul><li>Employment is not deemed terminated when there is a bona fide suspension of the operations of a business or undertaking for a period not exceeding 6 months, or when the employee fulfills a military or civic duty </li></ul>
  41. 42. PHILIPPINES <ul><li>Under the Corporation Code, the surviving or consolidated entity in a merger or consolidation automatically assumes all rights and obligations, assets and liabilities of the combining entities </li></ul><ul><ul><li>This includes obligations or liabilities under valid agreements, like labor contracts </li></ul></ul><ul><ul><li>The surviving or consolidated entity must, therefore, recognize the security of tenure and length of service of the workers of the merging or consolidating corporations </li></ul></ul><ul><ul><li>By the fact of merger or consolidation, a succession of employment rights and obligations occurs </li></ul></ul>
  42. 43. United States of America <ul><li>The employment at-will doctrine allows for the dismissal of workers for any reason, or for no reason at all </li></ul><ul><li>Nevertheless, American workers in various sectors have four primary protections from arbitrary termination of employment </li></ul>
  43. 44. United States of America <ul><li>Collective bargaining agreements usually contain provisions requiring that employees are only dismissed for “just cause” </li></ul><ul><li>The National Labor Relations Act has provisions that protect organized activity, and establishes a structure by which organized employees can collectively bargain for a common labor contract </li></ul><ul><li>Several statutes provide employees with protection against discriminatory termination </li></ul><ul><li>Three major exceptions to employment at-will based on case law </li></ul>
  44. 45. United States of America <ul><li>Exceptions to employment at-will based on case law </li></ul><ul><ul><li>The notion of a breach of an implied contract of employment requires that dismissal be for just cause </li></ul></ul><ul><ul><ul><li>the application of basic contract principles to employment agreements wherein promises and assurances by the employer can be seen as having binding contractual effect </li></ul></ul></ul><ul><ul><ul><li>oral or written representation, or an employer’s past practice could lead to an employee’s legitimate expectation that his or her employment will not be terminated without just cause </li></ul></ul></ul><ul><ul><li>Public policy exception </li></ul></ul><ul><ul><ul><li>protect employees from dismissal in those situations where they refuse to commit an illegal or unethical act requested by the employer or where they choose to exercise a statutory right </li></ul></ul></ul><ul><ul><li>independent tort actions, such as claims of intentional infliction of emotional distress </li></ul></ul>
  45. 46. United Kingdom <ul><li>According to the common law, any contract may be terminated by either party with due notice </li></ul><ul><li>However, the common law has been restricted by legislation aimed at curbing unfair dismissal </li></ul><ul><ul><li>The ERA provides that employees have the right not to be dismissed unfairly </li></ul></ul><ul><li>A dismissal may be fair if the employer shows that the dismissal: </li></ul><ul><ul><li>relates to the employee’s ability or qualifications to do the work </li></ul></ul><ul><ul><li>relates to the employee’s conduct </li></ul></ul><ul><ul><li>is the retirement of the employee </li></ul></ul><ul><ul><li>was because the employee was redundant </li></ul></ul><ul><ul><li>was necessary because continued employment would have necessitated a contravention by either party of a prior or legal duty </li></ul></ul>
  46. 47. United Kingdom <ul><li>A dismissal is automatically unfair , when the principal reason for dismissal involves: </li></ul><ul><ul><li>trade union membership, elected representatives of the employees, representatives of a recognized trade union, or trade union activities </li></ul></ul><ul><ul><li>refusal to belong to a trade union </li></ul></ul><ul><ul><li>unfair selection for redundancy </li></ul></ul><ul><ul><li>racial & sexual discrimination or discrimination on the grounds of disability </li></ul></ul><ul><ul><li>raising health & safety concerns </li></ul></ul>
  47. 48. United Kingdom <ul><li>A dismissal is automatically unfair , when the principal reason for dismissal involves: </li></ul><ul><ul><li>seeking to enforce a statutory employment protection right </li></ul></ul><ul><ul><li>transfer of an undertaking, unless the dismissal is justified by an economic, technical or organizational reason entailing a change in the workforce </li></ul></ul><ul><ul><li>conviction of an offence or failure to disclose a conviction </li></ul></ul><ul><ul><li>industrial pressure exercised on the employer </li></ul></ul><ul><ul><li>shop workers and betting workers who refuse Sunday work </li></ul></ul><ul><ul><li>trustees of occupational pension schemes </li></ul></ul>
  48. 49. BRAZIL <ul><li>The employment relationship may be terminated by the employer for just causes: </li></ul><ul><ul><li>Dishonesty </li></ul></ul><ul><ul><li>Misconduct or bad behavior </li></ul></ul><ul><ul><li>Habitual engagement by the employee in commercial transactions on his or her own account or for another without his or her employer’s permission </li></ul></ul>
  49. 50. BRAZIL <ul><li>The employment relationship may be terminated by the employer for just causes: </li></ul><ul><ul><li>A sentence passed on the employee by a criminal court without suspension of the execution of the penalty </li></ul></ul><ul><ul><li>Idleness of the employee in the performance of his or her duties </li></ul></ul><ul><ul><li>Habitual drunkenness or drunkenness while on duty </li></ul></ul><ul><ul><li>Disclosure of a secret of the undertaking </li></ul></ul><ul><ul><li>Breach of discipline or insubordination </li></ul></ul><ul><ul><li>Desertion of post </li></ul></ul>
  50. 51. BRAZIL <ul><li>The employment relationship may be terminated by the employer for just causes: </li></ul><ul><ul><li>Any act detrimental to the honor or good repute of another which is committed during employment , or an assault under the same conditions, except in case of legitimate self-defense or defense of another </li></ul></ul><ul><ul><li>Any act detrimental to the honor or good repute of, or an assault against the employer or a superior , except in case of legitimate self-defense or defense of another; or </li></ul></ul><ul><ul><li>Habitual indulgence in games of chance </li></ul></ul>
  51. 52. BRAZIL <ul><li>The Constitution prohibits the  dismissal of a unionized employee, except on account of a serious offence, from the moment he or she registers as a candidate for a leadership or representative position in the trade union and for one year thereafter </li></ul><ul><li>The Constitution protects pregnant workers from the date the pregnancy is confirmed until 5 months after confinement, and declares dismissals on the grounds of pregnancy null and void </li></ul><ul><ul><li>A pregnant woman is entitled to terminate the contract of employment if it is proved by a medical certificate that the work she performs is prejudicial to her condition </li></ul></ul>
  52. 53. SINGAPORE <ul><li>Either party to a contract of employment may at any time give to the other party notice of his/her intention to terminate the contract of employment </li></ul><ul><li>Summary dismissal by the employer is possible when: </li></ul><ul><ul><li>The employee willfully breaches a condition of the employment contract </li></ul></ul><ul><ul><li>the employee is continuously absent from work, without leave or reasonable excuse, for more than 2 days </li></ul></ul><ul><ul><li>the employee is found, after due inquiry, to be guilty of misconduct </li></ul></ul>
  53. 54. SINGAPORE <ul><li>If an employee is found, after due inquiry, to be guilty of misconduct, the employer may, instead of dismissing the employee, downgrade or suspend him or her for up to a week </li></ul><ul><li>An employer may not dismiss or discipline an employee on the grounds of trade union activities </li></ul><ul><li>There is a statutory prohibition to dismiss a female employee during pregnancy and maternity leaves </li></ul>
  54. 55. 6 Notice and Procedural Standards -- Procedural standards and statutory notice periods which must be complied with
  55. 56. PHILIPPINES <ul><li>Dismissals based on authorized causes involve grounds that allow the employer to terminate </li></ul><ul><ul><li>Requires payment of separation pay </li></ul></ul><ul><ul><li>When the termination of employment is declared illegal, reinstatement and full backwages are mandated </li></ul></ul><ul><ul><li>If reinstatement is no longer possible where the dismissal was unjust, separation pay may be granted </li></ul></ul>
  56. 57. PHILIPPINES <ul><li>Procedural Safeguards </li></ul><ul><li>If the dismissal is based on a just cause , the employer must give the employee two written notices and a hearing or opportunity to be heard before terminating the employment </li></ul><ul><ul><li>the notice should specify the grounds for which dismissal is sought </li></ul></ul><ul><ul><li>a notice of the decision to dismiss -- after the hearing or the opportunity to be heard </li></ul></ul><ul><li>If the dismissal is based on authorized causes </li></ul><ul><ul><li>the employer must give the employee and the DOLE written notices 30 days prior to the effectivity of the separation </li></ul></ul>
  57. 58. United States of America <ul><li>There is no legal requirement for notice to be given prior to termination of employment </li></ul><ul><li>Collective agreements usually include provisions for a reasonable period of notice </li></ul><ul><ul><li>However, these do not always guarantee compensation in lieu of such notice </li></ul></ul><ul><li>There is no legal policy or statute that requires the employer to grant the worker a fair hearing or follow any other natural justice process before dismissing him or her </li></ul>
  58. 59. United States of America <ul><li>Worker Adjustment and Retraining Notification Act of 1988 (WARN) or the Plant Closing Act </li></ul><ul><ul><li>covers employers with 100 or more employees who have worked more than 6 months during the past year, excluding part-time employees </li></ul></ul><ul><ul><li>requires employers to give 60 days’ advance notice of redundancies, plant closure or mass lay-off of workers </li></ul></ul><ul><ul><li>If the employer does not provide the requisite advance notice, the employer must provide a day’s wages for each day notice was not given </li></ul></ul>
  59. 60. United Kingdom <ul><li>If the employee has been continuously employed for at least one month, an employer is required to give notice before termination </li></ul><ul><li>The minimum periods of notice are: </li></ul><ul><ul><li>1 week, if continuously employed for less than 2 years </li></ul></ul><ul><ul><li>1 week for each year of continuous employment if the period is between 2 and 12 years </li></ul></ul><ul><ul><li>12 weeks if the period of continuous employment is 12 years or more </li></ul></ul><ul><li>If the employer does not observe the period of notice, the employment tribunal may grant payment in lieu of the period that should have been observed </li></ul>
  60. 61. BRAZIL <ul><li>A party who wishes to cancel the contract without lawful cause is bound to give notice to the other party of his or her intention as follows: </li></ul><ul><ul><li>8 days in advance if wages are paid weekly or at shorter intervals; </li></ul></ul><ul><ul><li>30 days in advance if wages are paid fortnightly or monthly, or if the employee’s length of service in the undertaking exceeds 12 months </li></ul></ul>
  61. 62. SINGAPORE <ul><li>Notice periods are governed by the terms of the contract, and it is only in the absence of such a stipulation that the statutory notice periods apply </li></ul><ul><li>Either the employer or employee may make a payment in lieu of notice </li></ul><ul><li>The contractual notice periods for both employer and employee are required to be equal </li></ul>
  62. 63. SINGAPORE <ul><li>The statutory periods of notice are at least as follows: </li></ul><ul><ul><li>for less than 26 weeks’ service, 1 day </li></ul></ul><ul><ul><li>for 26 weeks to 2 years’ service, 1 week </li></ul></ul><ul><ul><li>for 2-5 years’ service, 2 weeks </li></ul></ul><ul><ul><li>for more than 5 years’ service, 4 weeks </li></ul></ul><ul><li>Employers are required to make “due inquiry” before dismissing an employee for misconduct </li></ul>
  63. 64. 7 Severance Pay -- Statutory severance pay which must be provided on termination
  64. 65. PHILIPPINES <ul><li>Separation pay </li></ul><ul><li>Required to be paid to the employee when there is termination of employment by the employer for an authorized cause </li></ul>
  65. 66. PHILIPPINES <ul><li>Separation pay </li></ul><ul><li>The amount depends on the cause: </li></ul><ul><ul><li>If the termination is due to the installation of labour-saving devices or redundancy, the separation pay is one month’s pay for every year of service or one month pay, whichever is higher </li></ul></ul><ul><ul><li>If the termination is due to retrenchment to prevent losses, or closure or cessation of operation of the establishment not due to serious business losses, or due to disease, the separation pay is one-half month’s pay for every year of service or one month pay, whichever is higher </li></ul></ul><ul><ul><li>There is no requirement for separation pay if the closure is due to serious business losses </li></ul></ul>
  66. 67. United States of America <ul><li>There is no requirement in the Fair Labour Standards Act for severance pay </li></ul><ul><ul><li>However, severance pay may be granted to employees upon termination of employment </li></ul></ul><ul><ul><li>It is usually a matter of agreement between an employer and an employee, and based on length of employment for which an employee is eligible </li></ul></ul><ul><li>Severance pay may also be governed by the terms of a collective bargaining agreement, if available </li></ul><ul><li>As a matter of practice, most large employers not bound by collective bargaining agreements voluntarily provide some redundancy pay for employees terminated for economic reasons </li></ul>
  67. 68. United Kingdom <ul><li>No severance payment is offered if an employee was terminated because of misconduct or personal attributes  </li></ul><ul><li>However, an employee whose contract has been terminated on the grounds of redundancy is entitled to receive a redundancy payment: </li></ul><ul><ul><li>one-and-a-half week’s pay for each year of employment in which the employee was not below the age of 41 </li></ul></ul><ul><ul><li>one week’s pay for each year of employment in which the employee was not below the age of 22 </li></ul></ul><ul><ul><li>one half-week’s pay for each year of employment for each year not falling within the above </li></ul></ul>
  68. 69. BRAZIL <ul><li>Severance pay existed in Brazil well before its new 1988 Constitution </li></ul><ul><ul><li>Workers with more than ten years could only be dismissed for “just cause” or after a severance payment of two month’s wages per year on the job </li></ul></ul><ul><li>Unemployment Guarantee Fund </li></ul><ul><ul><li>The system required employers to deposit 8.5% of each employee’s formal monthly wage into an account managed by a state bank on behalf of the employee </li></ul></ul><ul><ul><li>Any employee unfairly dismissed is entitled to withdraw a proportion (50%) of the fund balance accumulated while he or she was at the firm </li></ul></ul>
  69. 70. SINGAPORE <ul><li>In case of redundancies, employees with more than three years’ service can claim retrenchment benefits </li></ul><ul><ul><li>The amount is subject to negotiation between the employee and employer </li></ul></ul><ul><li>Employees who have worked less than three years in a company are not entitled to retrenchment benefits </li></ul><ul><ul><li>The employer may pay an ex gratia payment at his/her discretion </li></ul></ul><ul><li>The prevailing norm in practice is to pay a retrenchment benefit varying between 2 weeks’ to one month’s salary per year of service </li></ul>
  70. 71. 8 Avenues for Redress -- Procedures for challenging dismissals and the remedies available
  71. 72. PHILIPPINES <ul><li>Four Possible Situations </li></ul><ul><li>The dismissal is for a just cause or for an authorized cause and due process was observed </li></ul><ul><ul><li>The dismissal is undoubtedly valid and the employer will not incur any liability (save for separation pay when the dismissal is for an authorized cause) </li></ul></ul><ul><li>The dismissal is without just or authorized cause BUT due process was observed </li></ul><ul><ul><li>Where the dismissals are illegal, the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages </li></ul></ul>
  72. 73. PHILIPPINES <ul><li>Four Possible Situations </li></ul><ul><li>The dismissal is without just or authorized cause and due process was not observed </li></ul><ul><ul><li>Same with the 3 rd situation -- employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages </li></ul></ul><ul><li>The dismissal is for just or authorized cause BUT due process was not observed </li></ul><ul><ul><li>The dismissal should be upheld -- while the procedural infirmity cannot be cured, it should not invalidate the dismissal </li></ul></ul><ul><ul><li>However, the employer should be held liable for nominal damages for non-compliance with the procedural requirements of due process </li></ul></ul><ul><ul><li>If the dismissal is for an authorized cause, the employee is also entitled to separation pay </li></ul></ul>
  73. 74. PHILIPPINES <ul><li>Compulsory arbitration of illegal dismissal cases is conducted by the Labour Arbiters of the NLRC and their decisions are appealable to the Commission </li></ul><ul><li>In view of the stated preference for voluntary modes of settling labour disputes, voluntary arbitration of illegal dismissals is recognized on the basis of mutual agreement between the parties </li></ul>
  74. 75. United States of America <ul><li>Employees in labour unions generally have more tools for redress than do non-unionized employees </li></ul><ul><ul><li>Such employees usually have access to an appeals procedure as outlined in their CBA </li></ul></ul><ul><ul><li>If the union and employer cannot resolve the issue administratively, almost every CBA requires that an arbitrator decide the issue </li></ul></ul><ul><li>Cases involving wrongful terminations under the NLRA (specifically “unfair labour practices”) may be decided before a special judicial body called the National Labour Relations Board </li></ul>
  75. 76. United States of America <ul><li>There is a recent trend to conclude individual contracts of employment with clauses that stipulate a designated procedure for resolving claims, including dismissals </li></ul><ul><li>Where dismissal has been found unlawful (regardless of unionized or non-unionized employees), the particular remedies vary, depending on the circumstances surrounding the termination of employment </li></ul><ul><ul><li>These specific remedies may include reinstatement and the reimbursement of back pay, traditional remedies of damages, as well as a reasonable attorney’s fee </li></ul></ul>
  76. 77. United Kingdom <ul><li>Only after a minimum period of one year of uninterrupted service is an employee entitled to claim unfair dismissal </li></ul><ul><li>Employees who believe that they have been dismissed unfairly may make a complaint to the employment tribunal within three months of the date of termination </li></ul><ul><li>Employees may sue employers for breach of contract in the civil courts </li></ul>
  77. 78. BRAZIL <ul><li>Disputes arising out of relations between employers and employees should be settled by the labour courts </li></ul><ul><ul><li>The Labour Appeal Court, regional labour courts, and the conciliation and arbitration boards or the courts of ordinary jurisdiction have jurisdiction </li></ul></ul><ul><li>In terms of remedies, if both parties are to blame for the act which brought about the termination of employment, the labour court may reduce the compensation to half the amount which would otherwise be due </li></ul>
  78. 79. SINGAPORE <ul><li>A dismissed employee who considers that he or she has been dismissed without just cause may, within one month of the dismissal and in writing, seek reinstatement (and/or compensation) from the Minister of Labour </li></ul><ul><ul><li>the Minister of Labour may delegate the investigation on the circumstances of the dismissal to the Labour Commissioner </li></ul></ul><ul><ul><li>A Commissioner appointed by the Minister will establish the facts of the matter and attempt to conciliate the dispute </li></ul></ul><ul><ul><li>If no agreement is possible, the Minister may order reinstatement or damages </li></ul></ul><ul><ul><li>The decision of the Minister, after receiving the report from the Commissioner, is final and cannot be challenged in any court </li></ul></ul><ul><li>For claims not of unfair dismissal but simply breach of contract at common law, the employee retains the right to sue in the civil courts </li></ul>
  79. 80. HASTA LA VISTA!