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Post by nicky on Mar 3, 2010 0:05:34 GMT 8
PRESIDENTIAL DECREE NO. 442, AS AMENDED. ART. 4. Construction in favor of labor. - All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor. source: www.chanrobles.com/legal4labor.htm
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Post by nicky on Mar 3, 2010 0:09:25 GMT 8
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Post by nicky on Mar 3, 2010 0:10:40 GMT 8
www.ilo.org/public/english/dialogue/ifpdial/info/termination/countries/philippines.htmDismissalAn equality of rights exists between employer and employee. While the employer cannot force the employee to work against his or her will, neither can the employee compel the employer to continue giving him or her work if there is a lawful reason not to do so. Thus, the employer may terminate the services of an employee for just or authorized causes after following the procedure laid down by law, but the employer has the burden of proving the lawfulness of the employee’s dismissal in the proper forum.[14] Just causes are blameworthy acts on the part of the employee such as serious misconduct, willful disobedience, gross and habitual neglect of duties, fraud or willful breach of trust, commission of a crime and other analogous causes (art. 282, LC).
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Post by nicky on Mar 3, 2010 0:12:05 GMT 8
www.ilo.org/public/english/dialogue/ifpdial/info/termination/countries/philippines.htmNotice and prior procedural safeguards[21]As stated above, dismissals based on just causes contemplate acts or omissions attributable to the employee while dismissals based on authorized causes involve grounds – business or health – allowing the employer to terminate. A termination for an authorized cause requires payment of separation pay. When the termination of employment is declared illegal, reinstatement and full backwages are mandated under art. 279 of the LC. If reinstatement is no longer possible where the dismissal was unjust, separation pay may be granted. Procedurally, (1) if the dismissal is based on a just cause under art. 282 of the LC, the employer must give the employee two written notices and a hearing or opportunity to be heard before terminating the employment, that is, a notice specifying the grounds for which dismissal is sought and, after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized causes under arts. 283 and 284 of the LC, the employer must give the employee and the Department of Labour and Employment written notices 30 days prior to the effectivity of the separation.
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Post by nicky on Mar 3, 2010 0:13:04 GMT 8
www.ilo.org/public/english/dialogue/ifpdial/info/termination/countries/philippines.htmSeverance payAs already noted, separation pay is required to be paid to the employee when there is termination of employment by the employer for an authorized cause, the amount of which depends on the cause. 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 (art. 283, LC). 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 (arts. 283 and 284, LC). However, there is no requirement for separation pay if the closure is due to serious business losses.[22]
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Post by nicky on Mar 3, 2010 0:15:01 GMT 8
www.ilo.org/public/english/dialogue/ifpdial/info/termination/countries/philippines.htmAvenues for redressFrom the foregoing, four possible situations may be derived: (1) the dismissal is for a just cause under art. 282 of the LC, or for an authorized cause – business reason under art. 283 or health reason under art. 284 – and due process was observed; (2) the dismissal is without just or authorized cause but due process was observed; (3) and there no process; (4) for a not observed. [23] In the first situation, the dismissal is undoubtedly valid and the employer will not incur any liability,[24] save for separation pay when the dismissal is for an authorized cause. In the second and third situations, where the dismissals are illegal, art. 279 of the LC mandates that the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement.[25] In the fourth situation, the dismissal should be upheld.[26] While the procedural infirmity cannot be cured, it should not invalidate the dismissal.[27] However, the employer should be held liable for nominal damages for non-compliance with the procedural requirements of due process.[28] If the dismissal is for an authorized cause, the employee is also entitled to separation pay.[29] Compulsory arbitration of illegal dismissal cases is conducted by the Labour Arbiters of the National Labour Relations Commission and their decisions are appealable to the Commission (arts. 217 and 218, LC). In view of the stated preference for voluntary modes of settling labour disputes under art. 13 (3) of the Constitution and art. 211of the LC, voluntary arbitration of illegal dismissals is recognized on the basis of mutual agreement between the parties (art. 262, LC). Compulsory arbitration is both the process of settlement of labour disputes by a government agency which has the authority to investigate and issue an award binding on all the parties, as well as a mode of arbitration where the parties are compelled to accept the resolution of their dispute through arbitration by a third party.[30] While a voluntary arbitrator is not part of the labour department, he or she renders arbitration services provided for under labour laws.[31] Generally, the voluntary arbitrator is expected to decide only questions that are expressly delineated by the submission agreement.[32] However, since arbitration is the final resort for the adjudication of disputes, the arbitrator can assume that he or she has the power to make a final settlement.[33] Thus, assuming that the submission agreement empowers the arbitrator to decide whether an employee was discharged for just cause, the arbitrator can reasonably assume that his or her powers extend beyond giving a mere yes-or-no answer and include the authority to reinstate with or without back pay.[34]
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Post by nicky on Mar 3, 2010 0:24:16 GMT 8
allfilipino.wordpress.com/2007/07/04/labor-code-of-the-philippines-art-282-286-termination/Labor Code of the Philippines (Art. 282-286: Termination) Posted by Patrick on July 4, 2007 THE LABOR CODE OF THE PHILIPPINES PRESIDENTIAL DECREE NO. 442, AS AMENDED. ART. 282. Termination by employer. – An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) 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 (e) Other causes analogous to the foregoing. *snipped As provided for by the amended Implementing Rules and Regulations: In all cases of termination of employment, the following standards of due process shall be substantially observed: For termination of employment based on just cases as defined in Article 282 of the Labor Code: (i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side. (ii) A hearing or conference during which the employee concerned, with the assistance of counsel, if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him. (iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. For termination of employment as defined in Article 283 of the Labor Code, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least thirty days before effectivity of the termination, specifying the ground or grounds for termination. If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination.
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Post by nicky on Mar 3, 2010 0:28:49 GMT 8
bluebonnethrblog.wordpress.com/2009/10/30/how-do-you-terminate-employment-of-problem-employees/Employment Relations Rule Once employed, the employee is presumed to have acquired job and employment security and he/she can not be removed by dismissal or termination unless for just and authorized causes. To a lesser degree, even suspension without due process is illegal as this may be considered “breach” of the employment contract between the employer and the employee. HR Philosophy The right to discipline is a Management right. Instilling discipline, forming desirable and productive behaviors and norms in the Company must stem from a clear Company Philosophy. Just like most HR management functions, the duty to discipline is a line function, wielded by shopfloor supervisors and line managers. The responsibility to discipline when used effectively enhances the leadership skills and credibility of the supervisor and manager. This is the Labor Code’s provision on just cause termination. We may simply define just cause termination as “employer initiated termination because of employee’s fault.” Art 282 provides for employer’s legitimate bases for initiating termination procedures– the substantive due process. [see Art. 282. above for reference] eto bhez ..wala ang company mo or walang orientation, pwede mo ipaglaban ... 1. Dapat may rules ka [ang company] on proper, restricted, regulated and prohibited behaviors for all employees. These rules must be applied for all work-related situations and circumstances. (see my entry on valid work rules.) 2. Publish these rules. Be sure to have proof that all employees regardless of employment status have been oriented regarding these rules.[/color] 3. When information of violation reaches you as superior of a subordinate, do an initial investigation. 4. The results of the initial investigation should give you an idea if the employee violated a rule. Parang probable cause ito sa korte. 5. Write the first notice as as described above. Some companies call this the “show cause” notice. I call it simply first notice. Better— charge notice. 6. Conduct the due process hearing. Tatlo yung role mu as boss– investigator, prosecutor, and judge. Be careful not to confuse your roles in front of the employee. 7. After the hearing, inform the employee when the decision regarding his case may be expected. 8. Best to arrive at a decision within a week after the first report of violation reached your office; or days after your due-process hearing. 9. If your decision is to terminate, best to serve the notice to the employee before the end of office/work day, and to make sure that he clears his table as he will not be reporting back anymore.
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Post by nicky on Mar 3, 2010 0:34:14 GMT 8
you can sue bhez for backwages, separation pay, attorney's fees, moral and exemplary damages
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Post by nicky on Mar 3, 2010 0:35:57 GMT 8
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Post by nicky on Mar 3, 2010 0:41:21 GMT 8
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Post by nicky on Mar 3, 2010 1:01:51 GMT 8
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Post by nicky on Mar 3, 2010 1:05:31 GMT 8
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Post by nicky on Mar 3, 2010 1:14:12 GMT 8
www.kittelsoncarpo.com/philippines-labor-employment/termination-of-employmentAn Employee may Question the Legality of his or her DismissalThe legality of the dismissal may be questioned before the Labor Arbiter of the National Labor Relations Commission (NLRC) of the Philippines, through a complaint for illegal dismissal. In establishments with a collective bargaining agreement (CBA), the dismissal may be questioned through the grievance machinery established under the CBA. If the issue is not resolved at this level, it will be submitted to voluntary arbitration. Proving the Dismissal is Legal[/b] In a case of illegal dismissal, the employer as the burden of proving that the dismissal is legal. Grounds for an Employee to Question his or her Dismissal An employee may question his or her dismissal based on substantive or procedural grounds. The Substantive aspect pertains to the absence of a just or authorized cause supporting the dismissal. The Procedural aspect refers to the notice of termination or the opportunity to present an explanation. What are the rights afforded to an unjustly dismissed employee?An employee who is dismissed without just cause is entitled to any or all of the following: 1. Reinstatement without loss of seniority rights, or separation pay if reinstatement is not possible; 2. Full backwages, inclusive of allowances and other benefits or their monetary equivalent from the time compensation was withheld from him or her up to the time of reinstatement; 3. Damages and attorney’s fees if the dismissal was done in bad faith.
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Post by nicky on Mar 3, 2010 1:22:37 GMT 8
www.kittelsoncarpo.com/philippines-labor-employment/termination-of-employmentAn employee charged with an offense may be placed under preventive suspension while he or she is preparing to answer charges filed against him or her by the employerOnly on grounds that his or her continued presence inside the company premises poses a serious imminent threat to the life or property of the employer or his or her co-workers, and only for a period of 30 days may be placed under preventive suspension. After 30 days, the employee should be reinstated to his or her former position or in a substantially equivalent position. The employer, however, may extend the period of suspension provided that the employee is paid his or her wages and other benefits during the extension. If the employer decides to dismiss the employee after completion of the investigation, the employee is not bound to reimburse the amount paid to him or her during the extended period. The employer is required to immediately notify the employee in writing of a decision to dismiss him or her stating clearly the reasons for the dismissal. Preventive suspension is not a disciplinary measure, and should be distinguished from suspension imposed as a penalty.
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