Validity of the Employer’s Decision on Termination[/color]
A dismissed employee may still question the validity or legality of his or her dismissal by filing a complaint for illegal or unjust dismissal before the Arbitration Branch of NLRC. In such a case, the burden of proving that the dismissal is for a valid or authorized cause rests on the employer.
During the pendency of the termination case, an employee may be be retained in his or her work[/color]
An employee may be retained in his or her work even during the pendency of a termination case under the following circumstances:
1. Upon serving the preventive suspension period of 30 days; and 2. Upon management prerogative allowing the employee to be retained at work and his or her continued employment poses no serious nor imminent threat to the life or property of the employer or his or her co-employees.
The Effects of Termination may be Suspended Pending Resolution of the Case[/color]
The Secretary of Labor of the Philippines may provisionally order a reinstatement in the event of prima facie finding that the dismissal may cause a serious labor dispute as in a strike or lock-out, or is in implementation of mass lay-off.
c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative. This includes such acts as competing with the employer, making clandestine profits, accepting bribes, as well as other acts that result in loss of trust and confidence on the part of the employer. There is no question that fraud committed by an employee against his employer is a just cause for dismissal but loss of trust (and confidence) of the employer in his employee requires further elaboration. It has been held that the basic premise for loss of confidence as a just cause for dismissal is that the employee concerned holds a position of trust and confidence, otherwise it is not a valid ground. (Quezon Electric Corp. vs. NLRC, 172 SCRA 88) In addition, the act complained of must be work-related and shows that the employee is unfit to work for his employer. (Aris Phil. Inc. vs. NLRC, 238 SCRA 59) A position of trust and confidence has been defined as one where a person is entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer's property. (Panday vs. NLRC, 209 SCRA 122) In another case, the observation was made that interpretation of the term "trust and confidence" should be restricted to managerial employees. (Marina Port Services vs. NLRC, 193 SCRA 420) This seems to be the later trend.
Thus in a recent case the Court made the observation that loss of confidence should ideally apply only to cases involving employees occupying positions of trust and confidence or to those situations where the employee is routinely charged with care and custody of the employer's money or property. To the first class belong manageable employees, and to the second class belong cashiers, auditors, property custodians, etc. or those who, in the normal and routine exercise" of their functions, regularly handle significant amounts of money or property. (Mabeza vs. NLRC, 271 SCRA 670) In a more recent case, the Court upheld the dismissal of a shift supervisor on the ground of breach of trust and confidence for tampering highly sensitive equipment in an oil terminal thereby exposing the entire terminal complex and the adjacent communities to the danger of a major disaster that may be caused by oil tank explosion and conflagration. (Deles Jr. vs. NLRC et al, March 1, 2000). However, there are decisions that have considered this cause asset applies to rank-and-file, as well as to managerial employees, leading to a distinction between the two. As a general rule, employers are allowed a wider latitude of discretion in terminating managerial personnel or those of similar rank performing functions which by their nature require the employer's full trust and confidence, than in the case of ordinary rank and file employees. Thus the rule has been laid that in rank-and-file employees, loss of trust and confidence requires proof of involvement in the events in question, and that mere uncorroborated assertions and accusations of the employer will not suffice. (Midtown Ramada vs. NUWHRAIN, 159 SCRA 212) By way of example, a salesman-collector was deemed to hold a fiduciary position. Although loss of trust and confidence constitutes a valid cause for termination, it must nonetheless rest on solid grounds that reasonably evince an actual breach thereof by an employee. The act upon which the loss of trust Is predicated must be related to the performance of the duties of th employee such as would thereby show him to be Indeed unfit to continue working for the employer. (San Antonio vs. NLRC, 250 SCRA 359). This requirement was reiterated in several cases where the High Court held that in order t constitute a just cause for dismissal, the act complained of must be work related and shows that the employee concerned is uiifit to continue to work for the employer. (Sulpicio Lines, Inc. vs. GuIde, Feb. 22, 2002).
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.
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.
bhez after ng hearing..ako pa ang nagtanong kung kelan ang result at ako pa ang nag pa follow up..feb 12 ang hearing namin..sabi sakin with a week mabibigay ang result..pero march 1 nila ginawa ang dismissal notice---wala akong kopya ng dismissal notice kaze kinuha nun hr manager..baka kaze magawan pa ng paraan..sabi kaze ng sr mgr ko..kakausapin namin muna un vice pres namin..at nun monday nun kinausap namin sya..we are asking to re open the case pero sabi nya..she doesn't want to give us false hopes dahil may decision na daw....
saka bhez ang complaint daw sakin..November..as per initial investigation daw ng hr wala pa daw sa top agent ang printer...pero ang printer bhez eh nasa top mentor na ng october..sabi sa nte ko bhez..date daw ng violation ko was sept 8..pero ang awarding ceremony was August 20..so ibig sabihin bhez kahit ang NTE nila sakin mali un mga dates...sabi sa letter due to threat to company's property and employee and the severity of charges filed against me..kaya nila ako sinuspend ng february..pero bhez kung nov ang report bakit it took them 2 months before they served the suspension....
bhez..about sa code of discipline namin sa office...na hired ako Aug of 2007..na orient ako last year lang ng october 2009...pero by that time yun printer nasa top mentor nah, na award ko nah...ang mali ko kaze bhez..hindi ko nadala sa office un printer agad..pero bhez kahit nasa akin un printer..i am very vocal na nasa bahay lang..at hindi ko tinago sa mga agents and sups ko un..kaze dko naman pagnanasaan un printer bhez ...
bhez, i can still file a complaint pala within 3 months ..pwede yun personal grievances...
yun seperation ko kaze effective april 6, 2010...i'll check bhez..kaze pwede sya if you were force to resign...i have naman the dismissal letter which i can use as evidence..lalapit ako sa public atty office dito sa city hall by monday...
good luck bhez and i hope things will turn out okay very soon for you ..let me know if i can be of help
thanks bhez ..whether you believe it or not...isa ka sa mga pinaghuhugutan ko ng strengths....kaya important sakin na i update kta sa mga actions ko... yun plan ko talaga is to get all my benefits first para makapag move ako forward...kahit na i'm pushing for this...i'm still pushing for my applications with other companies....and i'm also planning a business once i received my backpay... last time kaze bhez..it was really hard for me to decide kaze i'm broke due to my suspension..at least this time..stable na business ni bato bato..and i will get my backpay..:)
Before I begin, I would like to point out the people in this letter.
1.) Brother In-Law - My husband's younger brother 2.) Sister In-Law A - My husband's younger sister 3.) Sister In-Law B - My husband's younger sister 4.) Employer - Me
Hello, I need some inputs and advice. I have this company. My brother in-law is working as our company driver and a sister in-law (in-law A) working in the office starting January 2010. She convinced her sister ( in-law B ) to work with us. March 2010 in-law B just reported to the office with out any application nor submit resume. In-law B accepted without thinking for one reason because she is a sister of my husband. first week of June 2010, in-law A did not report to office at no reason and texted in-law B that she will resign, but did not submit resignation letter. Middle of June, employer had a meeting with all the staff, in-law B showed serious misconduct that insulted her employer in front of other employees. It was real unacceptable behavior. Employer then talked to in-law B to better leave the company at soonest possible time if she is not happy working with us. But then she cried and cried and ask sorry. Another chance was granted. January 2011, Brother in-law left at the office 12noon and never came back, just like that as if nothing happen. Employer asked for an explanation letter so he could come back to work but still nothing. Weeks, months never showed up. Until employer consider him out of the company without resignation letter again. From then on In-law B character and behavior at work is getting unusual to the point that it is not acceptable. Or shall I say " Serious misconduct; Willful disobedience of employer’s lawful orders connected with work ". Employer adviced her to resign. At first she acted so bad. Employer wanted to give her 2 months notice so she can find another job but she started deleting files on her working computer. Employer then ask her to tender her resignation right away on the same day, but in-law B said she will not tender resignation. Employer ask to return the mobile phones and others that is owned by the company but she refused to return.
2 days after, in-law B texted that employer should give 2 months separation fee to her and went back to the office, submitted her resignation letter and other company belongings.
IS SHE ENTITLED FOR A SEPARATION FEE OR NOT?
To add also, we do not have an employment contract as we are a small company with less than 5 employees. We only have verbal agreement.
Your ideas will be very much appreciated. Thank you.
Last Edit: Apr 7, 2011 0:40:39 GMT 8 by shiela1234
Hi Sheila! Sorry for the late reply. I'm afraid I am not familiar how to deal with this kind of situation since I am neither a lawyer nor that conversant of our labor law.
But then I was thinking if there is no contract between two parties it means the other party could not be obliged to fulfill an obligation.
But then since you are relatives and those people are related by-law to you for life unless you sever your legal ties with your husband, I supposed you can give them something but never allow them to work for you again.
But if you want it settled legally, better ask a lawyer or the labor.