Termination blog series 2 of 4 (Just Causes)
articles of the entire series is available here
Mama, I just killed a man, put a gun unto his head
pulled the trigger and now his dead,
mama, life has just began…
Today, the world is celebrating Labor Day. It’s just timely to release the 2nd article on this blog series.
Workers around the world enjoy certain rights as embodied in their labor code and their constitution. In the Philippines, we have labor standards and employee rights that business owners should respect and observe, these are:
i) Employment Standards
- (1) minimum age Art
- (2) non discrimination Art 3, Art
- (3) regularization Art
- (4) subcontracting Art 106, PLC
- (5) security of tenure Art
279*294, PLC (6) night work for women Art 130, PLC*repealed
- (7) forced labor Art 114, 116, PLC
ii) Workers right
- (1) to self organize Art 3, PLC
- (2) to strike Art
- (3) to collective bargaining Art
- (4) to arbitration Art
- (1) minimum wage Art 99, 120-127
- (2) Overtime pay Art 87, PLC
- (3) Premium pay on holidays and rest day Art 93-94, PLC
- (4) night shift pay Art 86, PLC
- (5) 13th month pay PD 851
- (6) non diminution of pay Art 100, PLC
iv) Hours of work
- (1) 8 hours Art 83, PLC
- (2) meal periods Art 85, PLC
- (3) weekly rest periods Art 91-92, PLC
- (4) Paternity leave RA 8187
v) Health and Safety
- (1) Paid maternity leave Art
- (2) Medical and dental services Art
- (3) Health and safety Art
- (4) Sexual Harassment RA 7877
- (5) Health Insurance (PhilHealth) RA 7875
- (6) Magna Carta of Women RA 9710
vi) Social Security
- (1) Employee Compensation Art
- (2) Social Security RA 1161
- (3) GSIS law RA 8291
But business owners also enjoy certain prerogatives and rights, to ensure an atmosphere that is conducive to productivity and profit.
These two rights (business owners and employees), however, are not absolute and may collide. To address this, due process mechanism was set up.
In my last post, we initially discussed just causes with little acts, that over time, can lead to termination of employment. On this issue, we’ll continue to discuss just causes, but cover a single but grave and serious act that can lead to outright separation, akin to killing a man.
A grave and serious act may be determined by the consequence or effect it brought to the company.
For example, employee A failed to turn off lights and air-con in the office that led to the increased electrical bills. Employee B failed to turn off the cooking stove that eventually led to a fire. Both acts constitute neglect of duty, but the result of one is graver than the other.
Before proceeding, let me remind you that no disciplinary action, much more termination can be rolled out unless “due process of law ” is observed. Furthermore, business owners and line managers should expect that terminated employees will question the legality of the dismissal before the Department of Labor and Employment.
Let us go back to the provision of just causes, which is Art.
282 *297 of the Phil. Labor Code
282297. Termination by employer. An employer may terminate an employment for any of the following causes:
- Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
- Gross and habitual neglect by the employee of his duties;
- Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
- Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and
- Other causes analogous to the foregoing.
What are these acts that may lead to immediate separation?
- Serious Misconduct– all misconduct is wrong, but to be a ground for outright termination it should be willful and serious like a violation of the anti-sexual harassment law.
- Gross Negligence–An act devoid of due diligence expected from an employee, resulting in loss of or damage to life, property, and environment. A good illustration would be the failure to follow safety procedures that may threaten public health and damage to property and the environment.
- Fraud or dishonesty–This act must be committed against the employer or his representative and intentional in nature. To terminate an employee using this ground, it should be based on established facts and the employer must not use this arbitrarily. Illustration: stealing a substantial amount
- Commission of a crime or offense against the employer or duly authorized representative–Please note that it can either be (1) a crime or offense and (2) committed against the employer, his family, or (3) his duly authorized representative (Managers and other company officers). Conviction is not necessarily required, when, according to Atty. C. A. Azucena, the act of misconduct or willful breach of trust is repeatedly committed by the employee. For example, qualified theft.
- Analogous Causes–To be considered analogous to the just causes enumerated, according to Atty. C. A. Azucena, it “must be due to the voluntary and/or willful act or omission of the employee”.
Please note, however, because of subsequent jurisprudence by the SC and other factors, due diligence in research and consultation with seasoned LR practitioners must be observed before proceeding with the termination.
* renumbered articles of the labor code (download your copy)