Termination of Employees under the Labor Code.pptx

Termination of Employee under
the Labor Code
Post-Employment | lexrex.ph

It covers those
establishments for profit
or not.
(Art. 294)
What
establishments
are covered by
the provisions on
Termination
under the Labor
Code?
lexrex.ph | For educational purposes only

He is protected from
terminations that are not
for a just cause or
authorized cause under
the Labor Code.
(Art. 294)
What is the
protection of a
regular
employee?

Those who are performing
activites who are usually
necessary or desirable in the
usual business or trade of the
employer, regardless of the
contrary agreements of the
parties.
(Art. 295)
Provided, that if he has rendered at least
one year of service (continuous or broken),
he shall be considered as regular
employee. (Art. 295)
Or an employee allowed to work after the
probationary period (Art. 296)
What is a regular
employee?

1. Whose employment has
been fixed for a specific
project or undertaking.
2. The completion or
termination must be
determined at the time of the
engagement. The one-year
condition does not apply.
(Art. 295)
What is a project
employee?

1. Whose employment has
been fixed for a specific
season.
2. The completion or
termination must be
determined at the time of
the engagement.
(Art. 295)
What is a
seasonal
employee?

Those whose employment
are not covered by the
aforementioned descriptions.
Provided, that if he has
rendered at least one year
of service (continuous or
broken), he shall be
considered as regular
employee. (Art. 295)
(Art. 295)
What is a casual
employee?

One whose employment
does not exceed 6
months unless he is
covered by an
apprenticeship
agreement stipulating for
a longer period.
(Art. 296)
What is a
probationary
employee?

1. For a just cause; or
2. Failure to qualify with
the reasonable
standards made
known by the
employer at the time
of his engagement.
(Art. 296)
How can a
probationary
employee be
terminated?

A worker covered by an apprenticeship agreement
with an individual employer for highly-skilled
occupations and undergoing practical training for
more than 3 months in an apprenticeable occupation
and is supplemented by theoretical instructions.
“Apprenticeable Occupations” - highly technical or any
form of employment that requires more than 3 months
of practical training on the job supplemented by
related theoretical instruction. (TESDA Law)
Qualifications (Art. 59)
● Age: At least 14 yrs old;
● Competence: Possesses vocational aptitude and
capacity for appropriate tests;
● Adaptability: Ability to comprehend and follow oral
and written instructions.
Appropriate educational requirements for different occupations may be
recommended by trade associations to the SOLE.
(Art. 58 Labor Code)
What is an
apprentice?

Are persons hired as trainees in
non-apprenticeable occupations
(semi-skilled, industrial, and others)
and which may be learned through
practical training on the job in a
relatively short period which shall
not exceed 3 months.
(Art. 73 Labor Code)
⭐ Employer is required to hire a learner
after the training - emphasized by Atty
Yusay
What is a
Learner?

Domestic worker or "Kasambahay"
refers to any person engaged in
domestic work within an
employment relationship such as,
but not limited to, the following:
general househelp, nursemaid or
"yaya", cook, gardener, or laundry
person, but shall exclude any
person who performs domestic
work only occasionally or
sporadically and not on an
occupational basis. (R.A. No.
10361, Sec. 2(d])
What is a
Kasambahay
?

Industrial Homeworker System of
production under which work for an
employer or contractor is carried
out by a homeworker at his/her
home. Materials may or may not be
furnished by the employer or
contractor
(Labor Code, Art. 154)
What is a
Home
Worker?

APPRENTICE LEARNERS
Employer’s Commitment
Not committed to hire after the
agreement
⭐ To hire learner at the end of 3 months
if the learner is willing (because job is
easily learned)
Occupation
Apprenticeable Occupation employed
by highly technical industries
Non-apprenticeable jobs (easily learned)
Agreement Apprenticeship agreement
Training duration
Not exceed 6 months
If exceeds 6 months, converted to
regular employment.
3 months or less
Training
Must include supplemental theoretical
instruction
No need for supplemental theoretical
instruction
Industry or competence Highly technical industry Semi-skilled
Wages
Not less than 75% of the minimum
wage except if apprenticeship is
required by the school

Termination/Dismissal of
Employment

He is entitled to
reinstatement without loss
of seniority right, other
privileges, and full
backwages, inclusive of
allowances,
benefits/monetary
equivalent.
(Art. 294)
What is the
entitlement of
employee who
was unjustly
dismissed?

From the time the
employee’s
compensation was
withheld from him to the
time of his actual
reinstatement.
(Art. 294)
When will the
computation
period of the
backwages?

1. Serious misconduct or willful
disobedience to the lawful
orders
2. Gross and habitual neglect by
the employee of his duties
3. Fraud or willful breach of the
trust reposed in him
4. Commission of a crime against
the person of his employer or
any immediate family member
of the latter;
5. Other analogous causes to the
foregoing.
(Art. 297)
What are the just
causes for
termination?

So long as the management’s
prerogatives are exercised in
good faith, and not to defeat
the rights of the employees,
the Court will uphold them.
(International Catholic vs. NLRC)
Management prerogative to transfer, demote,
discipline is valid provided it is not tainted with
ULP.
How do you balance
the management’s
right to advance the
business and the
employee’s right?

It must not be a strict harsh penalty
of dismissal from service
1. It must not be tainted with ULP;
2. It must be a valid management
prerogative;
3. It must be founded on
established facts;
4. A measure of self-protection.
5. “It would demoralize rank-and-file
employees if the undeserving
remains in service.”
For a just cause to
be upheld, what
must be present?

The employer has the burden to
affirmatively show adequate
evidence that the dismissal was for
justifiable cause.
Technical rules of procedure are not
binding on labor cases.
-Heavylift Manila vs. CA
Who has the
burden of
proof?

A transgression of some
established and definite
rule of action, not merely
trivial and unimportant. It
must be done with
wrongful intent.
What is
”misconduct”

When determining the penalty
for an erring employee, the
number of violations
committed during the period of
employment and gravity of
charges must be considered
collectively.
Principle of
“totality of
infractions”

1. Teacher pressuring another teacher to
change the failing grade of one student;
2. Obscene words against a superior;
3. Immorality that is not in an abstract way,
but that would render the servant
incapable of performing the service
properly. Factor: Position where setting a
good example is crucial.
4. Selling the product of a company to
competitors
5. Private matters between employees which
have apparent deleterious effect on the
substantial interests of the company;
6. Manager held the hands, massaged the
shoulder, and caressed the nape of his
secretary.1
7. Teachers engaging in adultery/immorality
with each other
Examples of
misconduct2
/valid grounds for
termination
1 – Villarama vs. NLRC
2 – consider totality of infractions

The conduct must so willful, flagrant, or
shameless to show indifference to the opinion
of good and respectable members of the
community. An act so unprincipled to a high
degree under scandalous circumstances as to
shock the common sense of decency. (Narag
vs. Narag)
Conduct should be evaluated based on
prevailing norms of conduct that are detrimental
to society, not by religious views. - Christine
Cadiz vs. Brent Hospital
What is
immorality?

1. Statement that employee is hot-
tempered and troublesome;
2. Borrowing money
3. Inflammatory spur-of-the-moment
outburst “siguro abnormal ang utak
mo!”
4. Teacher falling in love with her Grade
6 student in 1976. (Chua-Qua vs.
Clave)
5. Office assistant became pregnant
before marriage
Inadequate
grounds of
misconduct/
dismissal
1 – Villarama vs. NLRC

1) “Perverse and
wrongful attitude”
2) Lawful,
reasonable,
known order
Elements of
willful
disobedience

1. Reasonable and lawful;
2. Made known to the
employee;
3. Relevant to his work or
engagement.
RKR
What kind of order
to establish willful
disobedience?

● “important”
● “not trivial”
● Employer must prove
that it is a “legitimate
business concern”
• Bona fide occupational /
business necessity
What is
reasonable?

That some rules are so
fundamental and universal.
(e.g. prohibition against
reckless driving)
What is a defense to a
defense that “an
employee is ignorant of
the rules.”

Gross Negligence or Habitual
Neglect

Gross Negligence is the
absence of care in the
performance of one’s
duties
Habitual Neglect is the
repeated failure to perform
one’s duties over a period
of time.
Define

Intent – clear and
deliberate intent to sever
one’s employment without
intention of returning back;
Overt acts – intent shown
by overt acts
(e.g. absence without leave or illness, no
dismissal complaint filed)
How can
abandonment
be deemed as
negligence?

The disposition to lie,
cheat, deceive, betray, or
defraud; lack of honesty,
probity, and integrity.
NPC vs. Olandesca
What is fraud
or dishonesty?

Commission of a Crime or
Offense

For just causes,
a. Written notice of appraisal of Ee’s acts specifying
the ground(s) for termination (“show cause”);
b. Giving the Ee the reasonable opportunity to explain
his side through a hearing/conference with the
assistance of a counsel if the employee so desires,
present his evidence or rebut the allegations against
him (trial-type not required)
c. Written notice of the decision. If termination, must
state that “upon consideration of all circumstances,”
grounds have been established to justify his
termination. In case of termination, notice shall be
served in the Ee’s last known address.
D.O. 147-15 (Sept. 2015)
In termination, what
is the procedural due
process?

1. Installation of labor-saving
devices;
2. Redundancy;
3. Retrenchment to prevent losses
4. Business closure (except to
circumvent the law on
Termination)
5. Employee is suffering from a
diseases prejudicial to him or
his coworkers or is prohibited by
law
Notify the MoLE at least one month before the intended date
of authorized termination.
(Art. 298)
What are the
authorized causes
for termination?
Required
procedure?

For authorized causes,
aWritten notice to the employee and the appropriate
Regional Office of the DOLE at least 30 days before
the effectivity of the termination, specifying the
grounds of such termination.
Article 298, Labor Code
For completion of contract
or phase,
No prior notice required.
For failure to meet the
required standards (pro-B),
Notice to the employee within a reasonable time is
sufficient.

For “just causes”
1. Notice which apprises the employee of the
acts for which his dismissal is sought;
2. Notice which informs of the decision
For ”authorized causes”
1. Notice to the DOLE
2. Notice to the Employee (must be to
individuals not to the group)
At least 30 days from the effectivity of
termination
What is the “twin
notice” rule?

Aspect
Authorized
Causes
Just
Causes
Ground
Employer’s
economic
or
operationa
l
situation/
EE’s
Employee's
misconduct
or
performanc
e issues

Authorized Cause
Entitlement to the
Employee
Installation of labor-saving
device or redundancy
At least one month pay or
one-month pay per year of
service, whichever is
higher
Retrenchment to prevent
losses or closure not due to
serious business losses or
financial reverses At least one month pay or
½ month pay for every
year of service,
whichever is higher.
Employee is suffering from a
diseases prejudicial to him
or his coworkers or is
prohibited by law
(Art.
298,299)

If without just cause, must
serve a written notice to
the employer at least 1
month in advance.
Without such notice,
employee shall be liable
for damages.
How
should an
employee
resign?

Upon just cause such as:
1. Serious insult
2. Inhuman and
unbearable treatment
3. Commission of a crime
4. Other analogous
causes
SiUtCA
(Art. 300)
When can an
employee
resign
immediately?

1. Good faith suspension
of operations not
exceeding 6 months; or
2. The fulfillment by the Ee
of a military or civic duty.
(Art. 301)
When is an
employee not
deemed
terminated?

Reinstate the employee to his
former position without loss of
seniority rights if he desires to
resume.
Employee must make known such
desire not later than 1 month from
the resumption of operations or
relief from military or civic duty.
(Art. 301)
What should
the employer
do after these
events?

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