Professional Documents
Culture Documents
Atty. J. Oswald B. Lorenzo
Atty. J. Oswald B. Lorenzo
LORENZO
Former Labor Arbiter, NCR-NLRC; Professor of Law
and Pre-Bar Reviewer; President, The Center for Law
Advocacy and Specialized Studies (CLASS); former
Assistant Secretary, DENR and POEA Director for
Licensing and Past President, National Association
of Labor Arbiters (NALA), Inc.
A- UPDATES ON LABOR RULES
AND JURISPRUDENCE
A-I LEGALLY ALLOWABLE HIRING
POLICIES AND PRACTICES
REGULAR EMPLOYMENT
Regular employment is one where the
employee has been engaged to perform
activities which are necessary or desirable in
the usual business or trade of the employer.
(Art. 280, Labor Code)
CASUAL EMPLOYMENT
Casual employment is one where the work or
service to be performed by the employee is
merely incidental to the business of the
employer and such work or
Service is for a definite period made known
to the employee at the time of the engagement.
(Art. 280, Labor Code). A casual employee may
become a regular employee after one (1) year of
service. (Conti vs. NLRC, 271 SCRA 114)
PROBATIONARY EMPLOYMENT
Probationary employment
is one where the employee
is on trial by employer
during which the employer
determines the
qualification of the
employee for regular
employment.
As a general rule, the
probationary period of
employment should not
exceed six (6) months from
the date of the employee
started working. Applying
Article 13 of the Civil Code,
the probationary period of six
(6) months consists of one
hundred eighty (180) days.
(Mitsubishi Motors vs. Chrysler
Phils. Labor Union, G.R. No.
148738, J une 29, 2004).
The standards should be made known to
the employee at the start of engagement. If
standards are not made known to the
employee at start of employment, he is
deemed a regular employee from day
one.(Clarion Printing House, Inc. vs. NLRC,
G.R. No. 148372, J une
27, 2005. If there is no stipulation on
probationary period, the employment is
deemed regular. (ATCI Overseas
Corporation vs. CA, G.R. No. 143949,
August 9, 2001).
The permanent status of private school
teachers may be acquired if the following
conditions are present:
He is a full time teacher;
He must have rendered
three consecutive years of
service; and
His service must have
been satisfactory.(UST vs.
NLRC, 182 SCRA 371).
An employee who is
allowed to work after a
probationary period is
considered a regular
employee. (Article 281,
Labor Code)
PROJECT EMPLOYMENT
Project employment is one where the
employment of an employee has been
fixed for a specific project or undertaking,
the completion or termination of which
has been determined at the time of the
engagement of the employee.(Article 280,
Labor Code).
SEASONAL EMPLOYMENT
Seasonal employment is one where the work or
service to be performed by the employee is
seasonal in nature and the employment is for the
duration of the season. (Article 280, Labor Code).
Seasonal employee may become regular employee
after one (1) year of service. Once he attained such
regularity, he is properly to be called regular
seasonal employee. (Abasolo vs. NLRC, G.R. No.
118475, 11/29/00).
FIXED-TERM EMPLOYMENT
Fixed-term employment is one where the
employment of an employee is covered by a
fixed contract of employment.
The two (2) criteria under which fixed
contracts of employment cannot be said to be
in circumvention of security of tenure are:
The fixed period of employment was
knowingly and voluntarily agreed
upon by the parties, without any
force, duress or improper pressure
being brought to bear upon the
employee and absent any other
circumstance vitiating his consent;
or
It satisfactorily appears
that the employer and
employee dealt with each
other on more or less
equal terms with no
moral dominance
whatever being exercised
by the former on the
latter. (PNOC-EDC vs.
NLRC, G.R. No. 97747,
3/31/93).
The validity of fixed-period
employment has been
consistently upheld by the
Supreme Court starting with
Brent School vs. Zamora, G.R.
No. 48494, 2/5/90.
While their employment as
mixers, packers and machine
operators was necessarily and
desirable in the usual business of
the company, they were
employed temporarily only,
during periods when there was
heightened demand of
production.
Consequently, there could
have been no illegal
dismissal when their
services were terminated on
expiration of their contracts.
Contracts of employment for
a fixed period terminate on
their own at the end of such
period. (Labayog vs. M.Y.
San Biscuits, Inc., G.R. No.
148102, 7/11/06).
While the employees
employment as chicken dressers
is necessary and desirable in the
usual business of the employer,
they were employed on a mere
temporary basis, since their
employment was limited to a
fixed period. Consequently, there
was no illegal dismissal when the
employees services were
terminated by reason of the
expiration of their contracts.
(Pangilinan vs. General Milling
Corporation, G.R. No.
149329,7/12/04).
A.II LEGALLY ALLOWABLE
FIRING POLICIES AND
PRACTICES
JUST CAUSES OF TERMINATION
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 of the employee of
his duty;
Fraud or willful breach by
the employee of the trust
reposed in him by his
employer or his duly
authorized representative;
Commission of a crime or
offense by the employee
against his employer or any
immediate member of his family
or his duly authorized
representative; (Article 282,
Labor Code).
Violation of the Anti-Sexual
Harassment Law (Sec. 3,
Republic Act No. 7877);
Violation of the Comprehensive
Dangerous Drug Law (Sec. 36 (d)
Republic Act No. 9165);
Dismissal of an employee
pursuant to the demand of the
union from the management to
enforce the closed-shop
provision of the CBA. (Article
248 (e), Labor Code; Tanduay
Labor Union vs. NLRC, 149
SCRA 470; Del Monte Phils., Inc.
v. Saldivar, et.al., G.R. No.
158620, October 11, 2006).
An employer can be adjudged guilty
of unfair labor practice for having
dismissed its employees in line with
a closed-shop provision of the CBA
if they were not given a proper
hearing or due process. The
discharge of an employee from his
employment is null and void where
the employee was not formally
investigated and was not given the
opportunity to refute the alleged
findings by the company. (Tropical
Hut Employees' Union vs. Tropical
Hut, Inc. G.R. L-43495-99, J anuary
20, 1990);
Dismissal or loss of employment
status of union officers and
members who knowingly
participates in an illegal
activity/strike by defying a Return-
To-Work Order (RTWO) of the
Secretary of Labor or of the
Commission. (San J uan de Dios
Education Foundation Employees
Union-Alliance of Filipino Workers
vs. San J uan de Dios Educational
Foundation, Inc., G.R. No. 143341,
May 28, 2004, 430 SCRA 193;
Manila Hotel Employees Assn. v.
Manila Hotel Corporation, G.R. no.
154591, March 5, 2007).
Dismissal or loss of
employment status of
union officer who
knowingly participates in
an illegal strike. (Art. 264
(a), Labor Code; Gold City
Integrated Port Services,
Inc. vs. NLRC, G.R. No.
103560, J uly 6, 1995;
Pinero vs. NLRC, G.R. No.
149610, August 20, 2004,
437 SCRA 112); and
Dismissal or loss of
employment status of any
worker or union officer who
knowingly participates in the
commission of illegal acts
during strike. (Art. 264 (a),
Labor Code.
Ex. - Infliction of physical
injuries, assault, breaking of
truck windows and throwing
empty bottles to non-strikers.
(International Container
Terminal Services, Inc. vs.
NLRC, 256 SCRA 124).
AUTHORIZED CAUSES OF
TERMINATION
Installation of labor-saving
devices;
Redundancy- It exists
where the services of an
employee are in excess of
what is reasonably
demanded by the actual
requirements of the
enterprises.
A position is redundant where
it is superfluous and
superfluity of a position may be
caused by over hiring of
workers, decreased volume of
business or dropping of a
particular product line or
service activity previously
manufactured or undertaken by
the enterprise. It is not linked
with losses. (De Ocampo vs.
NLCR, 213 SCRA 652);
Retrenchment to prevent
losses - It is resorted to by
an employer primarily to
avoid or minimize losses;
Closure or cessation of
operation. (Art. 283, Labor
Code); backwages up to the
closure of company only.
(Retuya v. Dumarpa, G.R.
No. 148848, August 5, 2003).
Notes: By jurisprudence, a closure of
establishment may include the following:
Transfer of a workplace to a very
far location beyond the control
of an employer such as but not
limited to expiration of a lease
contract. (Chiniver Deco Print
vs. NLRC 325 SCRA 758).
Sale of company;
Merger;
Bankruptcy;
Insolvency
Closure due to serious
business losses or financial
reverses, the employer is not
obliged to pay separation pay
to his employees. (North Davao
Mining Corporation vs. NLRC,
254 SCRA 721; Galaxie Steel
Workers Union v. NLRC, G.R.
No. 165757, October 17, 2006).
Involuntary closure due to CARP
Program of DAR where the
employees are the beneficiaries,
the employer is not obliged to
pay separation pay to his
employees. (NFL vs. NLRC/
Patalon Coconut Estate, 327
SCRA 158).
Disease (Article 284, Labor
Code)
In the absence of the required
certification by a public health
physician, the employee's
dismissal due to disease is
invalid. (Crus vs. NLRC, G.R. No.
116384, February 7, 2000).
A.III LABOR STANDARDS
BENEFITS
DEFINITION
Labor standards are
defined as the minimum
requirements prescribed
by law relating to wages,
hours of work, cost-of-
living allowance, and other
monetary and welfare
benefits.
LEAVES WITH PAY
SERVICE INCENTIVE LEAVE
A.1 - MANDATORY FIVE (5)
DAYS SERVICE INCENTIVE
LEAVE WITH PAY (ART. 95)
A.2 OPTIONAL MORE THAN
FIVE (5) DAYS SUCH AS 15
DAYS SICK LEAVE AND 15
DAYS VACATION LEAVE.
ONCE GIVEN COULD NOT BE
UNILATERALLY WITHDRAWN
NOR DIMINISHED. (ART. 100)
3 SERVICE REQUIREMENT
1 YEAR
A.4 EXEMPTIONS:
SECTION I, RULE V, BOOK III
RULES IMPLEMENTING THE
LABOR CODE
GOVERNMENT EMPLOYEES
DOMESTIC HELPERS
MANAGERIAL EMPLOYEES
FIELD PERSONNEL
ESTABLISHMENTS
EMPLOYING LESS THAN TEN
(10) WORKERS (MEANS 1-9)
THOSE WHO ARE ALREADY
ENJOYING VACATION
LEAVES FOR AT LEAST FIVE
(5) DAYS
MATERNITY LEAVE
B.1 60 DAYS FOR ORDINARY
DELIVERY; 78 DAYS FOR
CAESARIAN DELIVERY;
B.2 FIRST FOUR (4)
DELIVERIES EITHER NORMAL,
ABORTION OR MISCARRIAGE;
B.3 LEGITIMATE OR
ILLEGITIMATE
B.4 Service requirement
the pregnant woman must
have rendered service of at
least 6 months for the last 12
months.
B.5 The employer must have
paid at least 3 months of
maternity contributions
within the 12-month period
immediately before the
semester of contingency.
(R.A. NO. 8282; ART. 133)
PATERNITY LEAVE
C.1 7 days for married male
employee, and cohabiting or
living together as husband and
wife.
C.2 First four (4) deliveries
either normal, abortion or
miscarriage (R.A. NO. 8187,
7/5/96)
SOLO PARENT LEAVE
D.1 7 DAYS FOR SOLO PARENT
(MALE AND FEMALE)
D.2 WHO IS A SOLO PARENT?
A WOMAN WHO GIVES BIRTH AS
A RESULT OF RAPE;
WIDOW OR WIDOWER;
SPOUSE OF CONVICT IN JAIL;
SPOUSE OF INSANE;
SPOUSE AFTER LEGAL
SEPARATION WITH CUSTODY OF
CHILDREN;
SPOUSE AFTER
DECLARATION OF NULLITY
OF MARRIAGE WITH
CUSTODY OF CHILDREN;
SPOUSE ABANDONED FOR AT
LEAST ONE YEAR;
UNMARRIED MOTHER OR
FATHER WITH CUSTODY OF
CHILDREN;
ANY PERSON WHO SOLELY
PROVIDES PASTORAL CARE
AND SUPPORT TO A CHILD;
AND
ANY FAMILY MEMBER WHO
ASSUMES RESPONSIBILITY
OF A PARENT WHO
ABANDONS. (R.A. NO. 8972,
11/7/2000)
BATTERED WOMAN LEAVE
E.1- 10 DAYS LEAVE
WITH PAY IN ADDITION TO
OTHER PAID LEAVES
UNDER THE LABOR CODE,
OTHER LAWS AND
COMPANY POLICIES.
BATTERED WOMAN Is one who
is a victim of any act or series of
acts of violence committed by
any person which resulted to
her physical, sexual or
psychological suffering.
E.3. TO APPLY FOR SUCH
LEAVE, THE WOMAN
EMPLOYEE
Has to submit a
certification from the
barangay captain or
kagawad or prosecutor
or the clerk of court
that an action under
R.A. No. 9262 has been
filed and is pending.
Usage of the 10-day leave
is at the option of the
woman employee. It shall
cover the day or days
when she will have to
attend to medical and legal
concerns.
LEAVES NOT AVAILED OF
ARE NON-CUMULATIVE
AND NOT CONVERTIBLE TO
CASH (R.A. NO. 9262, THE
ANTI-VIOLENCE AGAINST
WOMEN AND THEIR
CHILDREN ACT OF 2004;
3/8/04).
II 13TH MONTH PAY
The purpose of 13th month
pay is to help the plight of
the working masses to
properly celebrate Christmas
and New Year.
The employee must have
rendered service with the
company for at least one (1)
month.
The minimum 13th month
pay required by law shall
not be less than 1/12 of
the total basic salary
earned by an employee
within a calendar year.
The required 13th month pay
shall be paid not later than
December 24 each year. An
employer, however, may give
to his employees one half (1/2)
of the required 13th month pay
before the opening of the
regular school year and the
other half on or before the 24th
day of December of every
year. (Rules Implementing P.D.
No. 851)
An employee who has
resigned, whose services
were terminated, and who has
retired at any time before the
time of payment of the 13th
month pay is entitled to this
benefit in proportion to the
length of time he worked
during the year. (International
School of Speech v. NLRC,
G.R. No. 112658, 3/16/95).
III OVERTIME PAY
III.1 Overtime work means
work performed beyond 8
hours. (In computing
overtime pay, a day is
understood to be 24-hour
period commences from the
time the employee regularly
starts to work);
COMPENSATION:
1. Overtime work during
ordinary day = regular hourly
wage plus 25% premium
2. Overtime work during holiday
or rest day an additional
compensation equivalent to
the rate of first 8 hours on a
holiday or rest day plus 30%
premium. (ART. 87)
Undertime work on
any particular day shall
not be offset by
overtime work on any
other day. (Art. 88)
IV REST DAY/SPECIAL DAY PAY
IV.1 THE SPECIAL DAYS ARE:
NOVEMBER 1, DECEMBER 31
(E.O. NO. 203, 6/30/87),
AUGUST 21 (R.A. NO. 9256),
2.25.04), OTHER SPECIAL
DAYS ENACTED BY
CONGRESS, AND
PROCLAIMED BY THE
PRESIDENT FOR CERTAIN
AREA IN THE COUNTRY
(EXAMPLE CHARTER DAY).
IV.2 Work performed on rest
day regular wage plus 30%
premium.
IV.3. Work performed on
special day regular wage
plus 30% premium.
IV.4 Work performed during
rest day falling on special
day regular wage plus 50%
premium. (Art. 93).
IV.5 EXEMPTIONS:
SECTION II, RULE I, BOOK III
RULES IMPLEMENTING THE
LABOR CODE
Government employees
Domestic helpers
Managerial employees
Field personnel
Workers paid by results
V. NIGHT SHIFT DIFFERENTIAL PAY
V.1 At least 10% premium of his
regular wage for each hour of
work performed between 10:00
oclock in the evening and 6:00
oclock in the morning of the
following day. (Art. 86).
V.2 EXEMPTIONS:
SECTION I, RULE II, BOOK III
RULES IMPLEMENTING THE
LABOR CODE
Government employees
Domestic helpers
Managerial employees
Field personnel
Retail and service
establishments employing
not more than five (5)
workers (means 1-5)
VI. HOLIDAYS WITH PAY
VI.1 Every worker shall be paid
his regular wage during regular
holiday.
VI.2 The eleven (11) regular
holidays are January 1, Holy
Thursday, Good Friday, April 9,
May 1, June 12, last Sunday of
August, November 30, December
25, December 30. (E.O. NO. 203,
6/30/87) AND EIDUL FITR (R.A.
9177, 11/13/02).
VI.3 The employer may
require an employee to work
on regular holiday but such
employee shall be paid
compensation equivalent to
twice or 200% of his regular
rate (art. 94).
VI.4 If the holiday work falls
on the scheduled rest day =
260% of his regular wage
VI.5 The employee shall be
entitled to holiday pay
provided he works on the
day immediately preceding a
regular holiday or when he
is on leave of absence with
pay, (SEC. 6, RULE IV,
BOOK III, IMPLEMENTING
RULES)
VI.6 - EXEMPTIONS:
SECTION I, RULE IV, BOOK III RULES
IMPLEMENTING THE LABOR CODE
GOVERNMENT EMPLOYEES
DOMESTIC HELPERS
MANAGERIAL EMPLOYEES
FIELD PERSONNEL
RETAIL AND SERVICE
ESTABLISHMENTS EMPLOYING LESS
THAN TEN (10) WORKERS (MEANS 1-9)
VI.7 - DOUBLE HOLIDAY if
unworked 200% -
if worked - 400% (Asian
Transmission Corporation vs.
CA, G.R. No. 144664, 3/15/04,
425 SCRA 478).
VII. RETIREMENT PAY
Retirement benefits are
intended to help the
employee enjoy the
remaining years of his life,
lessening the burden of
worrying his financial
support, and are a form of
reward for his loyalty and
service to the employer.
(Laginlin vs. WCC, 159 SCRA
91)
VII.1 In general optional
60 years old; compulsory
65 years old; (ART. 287, R.A.
NO. 7641)
VII.2 Underground mining
optional 50 years old;
compulsory 60 years old;
(ART. 287, R.A. NO. 8558)
VII.3 Minimum length of service
AT LEAST 5 YEARS
VII.4 Retirement benefit
month pay for every year of
service a fraction of at least 6
months being considered as one
(1) whole year.
VII.5 THE TERM 1/2 MONTH
PAY SHALL MEAN:
15 DAYS SALARY
5 DAYS EQUIVALENT OF
SERVICE INCENTIVE LEAVE
1/12 OF THE 13TH MONTH PAY
(FACTORS IN OBTAINING 1/12
OF THE 13TH MONTH PAY:
391.5/12/12 = 2.71 (EMPLOYEES
WHO WORK 365 DAYS IN A
YEAR)
365/12/12 = 2.53 (MONTHLY
RATE EMPLOYEES)
314/12/12 = 2.18 (DAILY RATE
EMPLOYEES)
262/12/12 = 1.81 (EMPLOYEES
WHO WORK FIVE (5) DAYS
PER WEEK)
MOST COMMON = 15 + 5 + 2.18 =
22.18 DAYS FOR EVERY YEAR
OF SERVICE.
VII.6 EXEMPTIONS:
Section 2. Rule II Rules
implementing the New Retirement
Law (R.A. No. 7641)
GOVERNMENT EMPLOYEES
DOMESTIC HELPERS
RETAIL, SERVICE AND
AGRICULTURAL ESTABLISHMENTS
EMPLOYING NOT MORE THAN TEN
(10) WORKERS (MEANS) (1-10)
VIII. SERVICE CHARGES
VIII.1 Shall apply to hotels,
restaurants and similar
establishments.
VIII.2 DISTRIBUTION RATE:
85% FOR ALL COVERED
EMPLOYEES.
15% FOR MANAGEMENT.
(ART. 96).
IX.3 EXEMPTIONS: Barangay
Micro Business Enterprises
whose total assets exclusive
of land shall not be more
than P3 M after issuance of
Certificate of Authority by
the City/Municipality
Treasurer. Social security
and health care benefits are
not included. (Sec. 8, R.A.
No. 9178, BMBE Act of 2002,
approved on November 13,
2002).
SEPARATION PAY
It is a statutory right
designed to provide the
employee with the
wherewithal during the
period he is looking for
another employment
(Santos vs. NLRC, 154
SCRA 166).
X.1 An employee is entitled
to separation pay equivalent
to his one (1) month pay for
every year of service. A
fraction of at least six (6)
months being considered as
one whole year. If his
separation from service is
due to any of the following:
INSTALLATION BY THE
EMPLOYER OF LABOR-
SAVING DEVICES AND
REDUNDANCY, AS WHEN THE
POSITION OF THE EMPLOYEE
HAS BEEN FOUND TO BE
SURPLUSAGE OR
UNNECESSARY IN THE
OPERATION OF THE
BUSINESS. (ART. 283)
X.2 An employee is entitled
to separation pay equivalent
to one (1) month pay, or one-
half (1/2) month pay
whichever is higher for every
year of service a fraction of
at least six months being
considered as one whole
year, if his separation is due
to any of the following
causes:
RETRENCHMENT TO PREVENT
LOSSES, i.e. REDUCTION
OF PERSONNEL;
CLOSURE OR CESSATION OF
OPERATION OR
UNDERATAKING OF AN
ESTABLISHMENT NOT DUE
TO SERIOUS LOSSES OR
FINANCIAL REVERSES
(ART. 283); AND
When the employee is
suffering from a disease
not curable within a
period of six (6) months
and his continued
employment is prejudicial
to his health or to the
health of his co-
employees (Art. 284).
X.3 PROCEDURE Serve a
written notice on the
workers and the regional
director of the department
of labor and employment
having jurisdiction over the
place of business at least
one (1) month before the
intended termination.
B- STEPS FOR DEALING A
PROBLEM EMPLOYEE
An ideal employee is one
who will help solve an
existing problem and will
not add any problem to
his employer. Conversely,
an employee is a problem
one.
B.1 - DISCIPLINARY PROCESS
Establish performance
standards and work rules;
Communicate the rules to
employees;
Evaluate employee
performance and identify
violations of the rules;
Conduct investigation;
Inform the union if company is
unionized;
Application of corrective action
when necessary.
B.2 CIRCUMSTANCES AFFECTING LIABILITY
Justifying;
Qualifying;
Exempting;
Mitigating;
Aggravating.
Note: Good performance, long tenure,
first offense are mitigating factors while
recidivism is an aggravating factor.
B.3 DISCIPLINARY ACTIONS
Oral or written warning;
Reprimand
Fines (economic sanctions);
Demotion;
Suspension;
Dismissal
STEPS TO TAKE BEFORE FIRING
AN EMPLOYEE
C.1 The procedure for
termination of employment
based on just causes as
defined in Article 282 of the
Code:
1. A written notice served
to the employee
specifying the ground or
grounds for termination,
and giving to said
employee reasonable
opportunity within which
to explain his side;
2. A hearing or conference
during which the
employee concerned, with
assistance of counsel if
the employee so desires,
is given the opportunity to
respond to the charge,
present his evidence or
rebut the evidence
presented against him;
and
3. 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.
In case of termination, the
foregoing notices shall be
served on the employees last
known address.
For termination of employment
based on authorized causes as
defined in Article 283 of the
Code, the requirements 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 at
least thirty (30) days before the
effectivity of the termination,
specifying the ground or
grounds for termination.
If the termination is brought
by the completion of the
contract or phase thereof, no
prior notice is required. If the
termination is brought about
by the failure of an employee
to meet the standards of the
employer in the case of
probationary employment, it
shall be sufficient that written
notice is served to the
employee within a reasonable
time from the effective date of
termination.
Any decision taken by the
employer shall be without
prejudice to the right of
the worker to contest the
validity or legality of his
dismissal by filing a
complaint with the
Regional Branch of the
Commission.
During the hearing of the
termination cases based on
just causes, the employer
may place the worker
concerned under preventive
suspension if his continued
employment poses a serious
and imminent threat to the
life and property of the
employer or of his co-worker.
No preventive suspension
shall last longer than thirty
(30) days.
The law requires that the employer must furnish
the worker sought to be dismissed with two
written notices before termination of
employment can be legally affected:
1. Notice which apprises the
employee of the particular acts or
omissions for which his
dismissal is sought; and
2. Subsequent notice which
informs the employee of the
employers decision to
dismiss him. Failure to
comply with the requirements
taints the dismissal with
illegality. This procedure is
mandatory, in the absence of
which, any judgment reached
by management is void and
inexistent. (Pepsi-Cola v.
NLRC, 101900, J une 23,
1992).
C.2 LEGAL IMPLICATION IF
THE TERMINATION OF AN
EMPLOYEE IS WITHOUT
COMPLIANCE OF THE DUE
PROCESS REQUIREMENT
If the dismissal is based on a
just cause under Article 282
but the employer failed to
comply with the notice
requirement, the sanction to
be imposed upon him should
be tempered (P30,000.00)
because the dismissal
process was, in effect,
initiated by an act imputable
to the employee (AGABON
CASE).
If the dismissal is based on an
authorized cause under Article
283 but the employer failed to
comply with the notice
requirement, the sanction
should be stiffer (P50,000.00)
because the dismissal process
was initiated by the employers
exercise of his management
prerogative. (J aka Food
Processing Corporation vs.
Darwin Pacot, G.R. No. 151378,
March 28, 2005).
D-I WAGE ISSUES
Wage mean the
remuneration capable of
being expressed in terms
of money which is payable
by an employer to an
employee for services
rendered. (Article 97 (f),
Labor Code).
1. The minimum wage rates in
every region of the country shall
be those prescribed by the
Regional Tripartite wages and
Productivity Board (RTWPB).
(Art. 99, Labor Code)
2. The employer may not
unilaterally withdraw, eliminate
or diminish wage, supplements
or other benefits being enjoyed
by the employees. (Art. 100,
Labor Code).
3. An employer cannot be
forced to distribute bonuses
which it can no longer afford
to pay. To hold otherwise
would be to penalize an
employer for his past
generosity. Bonus is an act of
grace and cannot be
demanded as a matter of
right. (Producers Bank vs.
NLRC, G.R. 100701, 3/28/01).
4. The payment of wages by an
employer to an employee shall be
in legal tender. (Art. 102, Labor
Code).
5. The wages shall be paid at least
once every two (2) weeks or twice a
month at intervals not exceeding
sixteen (16) days. No employer shall
make payment with less frequency
than once a month. (Art. 103, Labor
Code).
6. The payment of wages shall be
made at or near the place or
undertaking. The payment o
wages through automated teller
machines is allowed. (Art. 104,
Labor Code).
7. The wages shall be paid directly
to the workers to whom they are
due except in cases of force
majeure or under special
circumstances. (Art. 105, Labor
Code).
D-2 WAGE DEDUCTIONS
No employer shall make any
deduction from the wages of his
employees except:
1. In cases where the worker is
insured with his consent by the
employer, and the deduction is to
recompense the employer for the
amount paid by him as premium on
the insurance;
2. Union dues;
3. Value of meals and other
facilities;
4. Debt of an employee to the
employer where such has
become due and demandable;
5. Withholding tax;
6. SSS, Philhealth and Pag-Ibig
Contributions;
7. Dues to a legally established
cooperative;
8. Loss or damage; provided
the responsibility of an
employee has been clearly
shown; with opportunity to be
heard; and the deduction is
fair, reasonable, does not
exceed the actual loss or
damage and does not exceed
20% of his wages in a week;
and
9. Absences. (Arts. 113, 114
and 115, Labor Code)
SUPREME COURT DECISIONS ON
LEGAL AND ILLEGAL DISMISSAL
AND OTHER ISSUES ON LABOR
1. ATTITUDE PROBLEM A VALID
GROUND FOR TERMINATION.
An employee who cannot get
along with his co-employees
is detrimental to the company
for he can upset and strain
the working environment.
Without the necessary
teamwork and synergy, the
organization cannot function
well. Thus, management has
the prerogative to take the
necessary action to correct
the situation and protect its
organization.
When personal differences
between employees and
management affect the work
environment, the peace of the
company is affected. Thus, an
employee attitude problem is a
valid ground for his termination.
It is a situation analogous to loss
of trust and confidence that must
be duly proved by the employer
(Heavylift Manila, Inc. v. CA, G.R.
No. 154410, October 20, 2005).
2. SHOWING DISRESPECT
AND MAKING OFFENSIVE
REMARKS AGAINST
SUPERIOR ARE GROUNDS
FOR TERMINATION.
The showing of
disrespect and making
offensive remarks against
his superior is a valid
ground for termination
which is tantamount to
serious misconduct
(Punzal v. ETSI
Technologies, Inc. G.R.
Nos. 170384-85, March 9,
2007).
In falsely accusing a
superior for robbery, the
offense committed was
libel, not slander (Torreda
v. Toshiba Information
Equipment, Inc., G.R. No.
165960, February 8, 2007).
The utterance of
obscene, insulting or
offensive words against a
superior constitutes gross
misconduct, which is one
of the grounds to
terminate the services of
an employee (Echevaria v.
Venutek Medika, Inc., G.R.
No. 169231, February 15,
2007).
3. POSTING NOTICE OF
CLOSURE ON BULLETIN
BOARD IS NOT
COMPLIANCE OF DUE
PROCESS.
- The mere posting on the
company bulletin board does not
meet the requirement under Article
283 of serving a written notice on
the workers. In order to meet the
purpose of informing the
employees of the specific date of
termination or closure of business
operations at least one month
before the date of effectivity,
service of written notice must be
made individually upon each and
every employee of the company
(Galaxie Workers Union v. NLRC,
G.R. No. 165757, October 17,
2006).
4. Refusal to render overtime
work to meet the production
deadline is considered
insubordination (R.B.
Michael Press v. Galit, G.R.
No. 153510, February 13,
2008).
5. The employer may be liable
for damages if he fails to
report to the SSS within five
(5) days the entry in the
logbook, the sickness, injury
or death he deems to be
work-connected under
Articles 205 and 206 of the
Labor Code (U-Bix
Corporation v. Bandiola, G.R.
No. 157168, J une 26, 2007).