Professional Documents
Culture Documents
Former Undersecretary / Deputy Minister of Department/Ministry of Labor and Employment, Republic of the Philippines | Former
President of Philippines PMAP (People Management Association of the Philippines | Currently Corporate Consultant in multinational
banks, global cement company and food and beverage conglomerate; Professor of Labor Law; and, Author of several Labor
Relations Books
I. INTRODUCTORY PROVISIONS
Rule I A
APPLICATION
APPLICATION OF
OF JUST
JUST AND
AND AUTORIZED
AUTORIZED
CAUSES
CAUSES OF
OF TERMINATION
TERMINATION
Section 1: Guiding Principle
The workers
workers rights
of of
Tenure
is
The
rightstotosecurity
security
Tenure
thethe
is Guaranteed
Guaranteedunder
under
Philippine
Philippine
Constitutio
Constitution
n
Laws
Laws
(Labor
(Labor Code)
Code)
Regulations
Regulations
II
MANAGEMENT
PREROGATIVES
1. Hire
2. Fire
3. Transfer
4. Promote/Demote
5. Lay-off
6. Lay-down Policies
7. Discipline
8. Working Hours
9. Working Structures
10. labor-Saving Devices,
11. PROMOTE Quality
12. PROMOTE
PRODUCTIVITY
F. Respect Management
Prerogatives, and
Copyright J. B. Jimenez
Framework of
Employer-Employee
Relationship
State
Employee
rights
Powers
Employer
Prerogatives
21
DISCIPLINE
DISMISS
based on
JUST CAUSE
and
DUE-PROCESS
LEGAL DISMISSAL
EQUALS JUST
OR
AUTHORIZED
CAUSE PLUS
DUE - PROCESS
LD = J/AC + DP
Copyright J. B. Jimenez 2012
25
JUST CAUSES
Art 282
26
27
I.
SERIOUS
MISCONDUCT
II.
INSUBORDINATION
III.
IV.
GROSS AND
FRAUD OR WILLFULL
HABITUAL NEGLECT
BREACH OF TRUST
V.
CRIME AGAINST
PERSON OF
EMPLOYER
VI.
ANALOGOUS
CASES
Etc.
Copyright
J. B.
Jimenez
2011
Copyright
J. B.
Jimenez
VII.
VIII.
CAUSES AGREED
UPON
2. Opportunity To Be Heard
(Investigation or Written Explanation)
I. INTRODUCTORY PROVISIONS
No employee shall be terminated from work
except for
Just
Cause
Authorized
Cause
Upon
observance
of DUEPROCESS
I. INTRODUCTORY PROVISIONS
RULE I-A Section 2 Coverage
All parties of
legitimate
contracting
arrangements
with existing
employeremployee exists
32
I. INTRODUCTORY PROVISIONS
RULE I-A Section 3
To ascertain the existence for
Employer-Employee Relationship
The 4-Fold Test shall Apply
The
selection
and
Engagemen
t of the
Employee
The
payment of
wages
The power
of dismissal
The power
of Control
(The
Control
Test)
33
I. INTRODUCTORY PROVISIONS
THE CONTROL TEST
The most
crucial and
determinative
indicator
Where the
Employer
controls not
only the End
but the Means
of Achieving
Article 298:
Closure and
Reduction of
Personnel
Article 299:
Diseases
35
Enumerated
under Article
297 (282)
Due to fault or
negligence of
employee
Complete or
partial
Cessation of
operations
Shut down of
the
establishment
Employer
Member of
his family
Duly
authorized
representati
ve
38
Engaged in a
legitimate
contracting or
subcontracting
Providing,
either services,
skilled or
temporary
workers, to a
PRINCIPAL
under a Service
Agreement
Pursuant to
a service
agreement
with a
principal
To perform a
job, work or
service
Regular
employees
of
contractor
Person in the
employ of the
employer
Including these
whose work has
ceased in
connection
with, or as a
result of a labor
or industrial
dispute
Acting in the
interest of am
employer
directly or
indirectly
Includes
corporation,
partnership,
single
proprietorship
and
cooperative
Which involves
a breach of
legal duty,
trust or
confidence
And is injurious
to another
NEGLECT refers to
Repeated
failure to
perform
ones duties
Over a
period of
time
Depending
on the
circumstanc
es
The absence
of that
DILIGENCE
That an
ordinary
prudent man
would use in
his own
affairs
The refusal to
obey some
order, which a
superior is
entitled to give
It is a willful or
intentional
disregard of the
lawful and
reasonable
instructions of
the employees
Reduction of
the workers in
any workplace
Made necessary
by the
introduction of
labor-saving
machinery or
devices
Arising from
fraud or
willful
breach of
truest by
employee
Of the trust
reposed in
his / her
employer
Or by the
employers
duly
authorized
representati
ve
FIRST CLASS:
Managerial
employees, or
those vested
with the power
to lay down
management
policies
SECOND CLASS:
Consists of
cashiers,
auditors,
property
custodians or
those who
regularly
handle large
amounts of
cash
MISCONDUCT refers to a
Transgres
sion of
some
establishe
d and
definite
rule of
action
Implies a
wrongful
intent
Not a
mere
error in
judgment
A
forbidden
act, a
derelictio
n of duty,
willful in
character
Person
Entity
Including
Govt
Agencies
GOCCs
And
others
Which
Forms out a
job, service
or work
To a
contractor
51
When the
services of
the
employee
Are in
excess of
what is
reasonably
demanded
Of the
actual
requirement
s of the
enterprise
Economic
ground for
dismissing
employees
Is resorted to
primarily avoid
or minimize
business losses
III. DUE-PROCESS
Rule 1 A
Section 5
1.Standards of Due-Process
In all cases of termination of employment,
the standards of DUE-PROCESS laid down in
Article 299 (b) (formerly Article 277, Par b),
of the Labor code, as amended and settled
jurisprudence on the matter, must be
observed.
III. DUE-PROCESS
2. REQUIREMENT ON THE FIRST WRITTEN
NOTICE
2.1 Termination of Employment Based on
Just Cause
As defined in Article 297, of the Labor Code,
as amended, the requirement of two notices
served on the employee shall observe the
following:
III. DUE-PROCESS
The First Written Notice Should Contain:
The specific causes or grounds for
termination as provided for under Article
297 of the Labor Code, as amended, and
company policies if any
Detailed narration of the facts and
circumstances that will serve as basis for
the charge against the employee. A general
description of the charge will not suffice
III. DUE-PROCESS
The First Written Notice Should Contain:
A directive to the employee is given the
opportunity to submit a written
explanation within a reasonable period.
III. DUE-PROCESS
Meaning of Reasonable Period:
Reasonable period should be construed as
a period of at least FIVE (5) calendar days
from receipt of the NOTICE to give the
employee an OPPORTUNITY to study the
accusation, consult or to be represented
by a lawyer or union officer, gather data
and evidence, and decide on the defenses
against the complaint.
Any
meaningful
opportunity
(verbal or
written) given
to the
employee in
answer to the
charges
against him /
her
And submit
evidence in
support of his /
her defense,
whether in a
hearing,
conference or
some other fair,
just and
reasonable way
When
requested
by the
employee in
writing
Or
substantial
evidentiary
disputes
exist
Or a
company
rule or
practice
requires it,
or when
similar
circumstanc
es justify it
III. DUE-PROCESS
THE SECOND WRITTEN NOTICE:
NOTICE OF TERMINATION
After determining that termination
of employment is JUSTIFIED
The Employer shall serve the
Employee a:
III. DUE-PROCESS
WRITTEN NOTICE OF TERMINATION
SHOULD INDICATE THAT
All
circumstances
involving the
charge against
the employee
have been
considered,
and
The grounds
have been
established to
justify the
severance of
their
employment
2.
The Misconduct Must Be
of Such Grave and
Aggravated Character
4.
There Must be a Showing
that the employee becomes
unfit to continue working
for the employer
3.
It Must Relate To The
Performance Of The
Employees Duties
4.
The order must pertain to
the DUTIES which has been
engaged to discharge
3.
The order violated must
be reasonable, lawful
and made known to the
employee
There must be
a neglect of
duty
The negligence
must be both
gross and
habitual in
character
2.
The act, omission or
concealment involves a
breach of legal duty, trust
or confidence justly
reposed
4.
It must be in connection
with the employees work
3.
It must be committed
against the employer or
his representative
6.
It must be genuine and not a
mere after thought to justify an
earlier action in Bad Faith
3.
The employee concerned must be
holding a position of trust and
confidence
5.
It should not be used as a
subterfuge for causes which are
improper, illegal or unjustified
4.
The loss of trust and confidence
should not be simulated
There must be
an act or
omission
similar to
those specified
just causes
The act or
omission must
be voluntary
and/or willful
on the part of
the employee
2.
The introduction
must be done in
good faith
5.
There must be fair
and reasonable
criteria in selecting
employees to be
terminated
3.
The purpose of such
introduction must be
valid such as to save on
cost, enhance
efficiency, and other
justifiable economic
reasons
4.
There is no other
option available
to the employer
than the
introduction of
machinery and the
consequent
termination of
employment of
those affected
thereby
5.
There must be an
adequate proof of
redundancy such as but
not limited to the new
staffing pattern,
feasibility studies on the
viability of the newly
created position. Job
description and the
approval by the
management of the
restructuring
3.
There must be GOOD FAITH in
abolishing redundant positions
4.
There must be fair
and reasonable
criteria in selecting
the employee to be
terminated
5.
There must be fair and
reasonable criteria in
ascertaining who would be
dismissed and who would be
retained, among the
employees
3.
The expected or actual
losses must be proved by
sufficient and convincing
evidence
4.
The retrenchment must be in
good faith, for the
advancement of its interests
and not to circumvent the
employees right to security of
tenure
1.
There must be a
DECISION to close or
CEASE operations of
the enterprise by
management
2.
The DECISION was
made in GOOD FAITH
3.
There is no other
option available to the
employer except to
close or cease
operations
1.
The employee must be
suffering from any
disease
3.
There must be a
certification by a
competent public health
authority that the
disease is incurable
within a period of 6
months even with
proper medical
treatment
2.
The continued
employment of the
employee is prohibited
by law or prejudicial to
his/her health or to the
health of his /her coemployees
Shall be APPLICABLE
In cases of
Installation
of laborsaving
device
Redundancy
Retrenchme
nt
SEPARATION PAY
Shall be paid by the employer to
the employee, as follows
1.
Installation of laborsaving devices and
redundancy:
1 Month Pay for every
year of service
2.
Retrenchment or
Downsizing:
At least one month pay or
MONTH PAY for every
year of service
4.
At least one month pay
or month pay for
every year of service
3.
Closure of Certain
Operations:
At least one month pay of
month pay for every
year of service
5.
None of these terminated
based on JUST CAUSE
except if provided
otherwise by the CBA or
company policy
Shall be dealt
with
administrativ
ely
It shall be
ground for
SUSPENSION
or
TERMINATIO
N
ACTUAL
PERCEIVED
HIV
STATUS
DOLE D.O. 102, Series of 2010
SUSPECTED
ACTUAL
PERCEIVED
SUSPECTED
HEPATITIS B
STATUS
DOLE D.A. No. 5 Series of 2010, Part III,
C.1, Par C
Shall NOT be
discriminated
against
He / She is
entitled to
work as long
as he / she is
certified by
the
companys
accredited
health
provider as
medically fit
Shall be
restored to
work as soon
as his / her
illness is
controlled
Is considered
a SEXUAL
HARASSMENT
It is
reprehensible
enough but
more so if
inflicted by
those with
MORAL
ASCENDENCY
over their
victims
See RA:
78777 Libres
vs NLRC GR
123737, 28
May 1999
Violation of
Union Security
Clause
Union Disloyalty
and Political
Causes
Mandated by
RA 10396,
and its IRR
Request for
Assistance
shall be
forwarded to
the SEADO of
appropriate
DOLE unit
All settlement
shall be
documented
SC
CA
VA
4.
SC
3.
CA
2.
NLRC
1.
Labor Arbiter
Director for
Employee and Labor
Relations and
Director for Labor
and Industrial
Relations Litigation
Employee Relations
Manager and Senior
Labor Attorney
(3 Years)
total of 20 years
3. Extensive Mastery of HUMAN RESOURCES and LABOR
LAWS as Professor of Law in UST, UE, FEU, etc. and
Resource Person in PMPP, UP-SOLAIR, Chambers of
Commerce and other professional and industry
groups
- for 30 years
4. AUTHOR of BOOKS on
(4.1) Employee Discipline
(4.2) Philippine Labor Standards
(4.3) Philippine Labor Relations
5. A
Much
Sought-after
Inspirational
Contact
Details Speaker
:
Resource
Person
and
108
THANK YOU!
MARAMING
SALAMAT!
DAGHANG
SALAMAT!
DAMO NGA
SALAMAT!
DIOS MABALOS!
DIOS TI AGNINA!
TERIMAH KASHI!
SHUKRAN!
DOMO ARIGATO!
MUCHAS GRACIAS!
MERCI!
-JBJ
109