BOOK

SIX POST EMPLOYMENT      

Termination of
I. Employment      
  NOTES FACTS ISSUE RULING
No, the case does not
concern an ecclesiastical or
purely religious affair. It
rightfully exercised the
Religious institution; Dismissal management prerogative
Coverage of the Law IS THE NLRC CORRECT ON
293 due to misappropriation of to dismiss an employee,
on Dismissal THE DISMISSAL
funds involving the relationship
between the relationship
of the church as an
employer and the district
pastor as an employee.
Including educational,
medical, religious and
charitable institutions
  and orgs      
Security of Tenure
means that the
employer cannot
dismiss an employee
without just cause,
demotion or transfer
of REGULAR
294 EMPLOYMENT      
Just cause - YEE
committed, violated
  YER.      
Authorized cause - YER
exercised his
management
  prerogative      
Other non-regular
employees - MAY have
security of tenure;
  qualified      
Illegal dismissal not a
  criminal offense      
No, because there has
been no complain for ID
with the Labor Arbiter
therefore NLRC cannot
Remedy for Illegal entertain action for
dismissal - file a Dismissal for currency injunction; provisional
complaint for ID with smuggling; YEE went to NLRC IS THE NLRC CORRECT ON remedy adjunct to the
  the Labor Arbiter for injunction INJUCTION GRANT main suit.
Period for Action for ID
- 4 yrs if reinstatement,
3 yrs for separation
  pay      
  Presumptive Period; Dismissal due to   The action has already
date of the dismissal. misappropriation of money; prescribed because the
Filing of criminal case filed a case of estafa then reckoning of the
does not interrupt the dismissed. Filed with LA 5 years prescriptive period starts
running of prescriptive after for illegal dismissal. when the employee was
 illegally dismissed and the
filing of criminal case does
period not interrupt such period.
LACHES as a bar to an
action for illegal Workers union declared a
dismissal only upon strike, YER dismissed 45 YES, 6 yrs and half already
the most convincing workers. Filed with LA 1963 for passed. Too late in the day
evidence of deliberate ID then 1970 amend the Is the amended complaint to allow the desired
  inaction. complaint barred by laches amendment
Relief for illegal
dismissal. If OFW, 1.
Salaries for the
unexpired portion of
his employment
contract and 2.
Reimbursement of his
placement fee plus
12% interest per
annum. FOR LOCAL,
REINSTATEMENT
without loss of
seniority rights and
other privileges and
BACKWAGES;
separation pay as
alternative and other
cases, DAMAGES can
  be awarded      
No, because the position
held by him at the time of
REINSTATEMENT - Supervisor Dismissed due to his termination was a sales
restoration to a state business losses. YEE granted supervisor and that he
from which one has preferential hiring if there is cannot be hired higher
been removed or vacant. BRANCH MANAGER Can the employee be branch than the previous occupies
  separated was vacant manager? position.
No, because the previous
position was a temporary
Temporary Security Guard to guard not the permanent
be promoted as Permanent guard. Reinstatement is
guard. Sudden illegal dismissal. the restoration to a state
Guard wants reinstatement as Is there unfair labor from which one has been
    Permanent Guard practice? removed or separated.
REINSTATEMENT;
Relief separate from
back wages.
Reinstatement
restores the lost
position while back
wages restores the lost
  income.      
Only employees who Yes, because the fact of
are illegally dismissed Bus driver was using illegal dismissal from
are entitled to drugs. YER wants explanation. employment was not
REINSTATEMENT. YEE went to LA and filed for established. There is no
DISMISSAL SHOULD illegal dismissal. NLRC illegal dismissal to speak
  HAPPEN. dismissed Is the dismissal proper? of.
Reinstatement can still
  be seeked even if      
 employed na sa iba.
Circumstances that will
  Bar Reinstatement: Transfer of ownership Business reverse Abolition of position
Conviction in criminal case;
    Closure of business closure of business a supervening event
RELIEF OF SEPARATION
PAY AS ALTERNATIVE
  TO REINSTATEMENT      
No reinstatement; SP and
backwages only.
Accused of qualified theft, BACKWAGES; Constructive
SP instead of cashier was detained due to no dismissal to expiration of
Reinstatement; bail posted. Constructive her probationary
  exemptional cases dismissal   employment
How much SP: Atleast
one month salary or
One month salary for
every year of service
whichever is higher. 6
months is considered a
  year      
Generally, an
employee dismissed
for a just cause is not
entitled to separation
but exceptionally, SP
may be awarded as a
measure of social
  justice.      
         
BACKWAGES; a relief
that restores the
income that was lost
by reason of illegal
dismissal. He is entitled
to all the rights and
privileges that accrue
to him by virtue of the
  job that he held.      
Amount: salary from
the time his
compensation was
withheld from him
  until his reinstatement      
FULL BACKWAGES;
  illegal dismissal      
LIMITED BACKWAGES;
when not entirely
faultless, delay in filing 2 years and 15 days,
the complaint for limited backwages should
  illegal dismissal     be awarded
However, dismissal is not
NO BACKWAGES; YER proper. 20 years in service
acted in good faith in and 2 commendations for
dismissal. Reins MERALCO's supervisor. honesty. Reinstatement
  without back wages Dishonesty for the first time.   and no backwages nalang.
NO BACKWAGES; if the No backwages because
  cessation of     there was no dismissal.
 employment was due
to the employee's
refusal to work.
No backwages because
there was no dismissal.
Only valid demotion
NO BACKWAGES; because of sales quota.
Failure to work due to Productivity standard,
  the YEE.     management prerogative.
IRREGULAR WORKERS'
  BACKWAGES      
PROBATIONARY
EMPLOYEE
BACKWAGES; dismissal
to expiration of the
  contract      
SP and BACKWAGES
can we awarded
simultaneously. SP to
provide the employee
money during the
period in which he will BW is based from dismissal
be looking for another to finality of the decision
employment. BW is for ordering separation pay
the restore the income because it terminates the
that was lost due to employee-employer
  the unjust dismissal     relationship
CIRCUMSTANCES THAT
WILL FORESTALL THE
RUNNING OF
BACKWAGES;
supervening events
like closing of business,
employee dies,
compulsory
retirement, incapacity
of employee or
  criminal case      
Imposition of interest
on monetary awards:
the judgement must
award the monetary
benefit and not
confirms and there
should be delay on the
part of the employer in
paying the monetary SP was only confirmatory
  award     and not a monetary award.
         
RELIEF OF MORAL AND
  EXEMPLARY DAMAGES      
  Prescribed by the Civil      
Code; illegal dismissal
does not per se
warrant damages but
only when there is
fraud, bad faith or
oppressive conduct
 conscious and
intentional.
         
RELIEF OF ATTORNEY'S
  FEES      
Indemnity for damages
ordered by court to be
paid by the losing
party. Civil code.
FACTUAL, LEGAL AND
EQUITABLE
  justification.      
         
MANAGEMENT
  PREROGATOVES      
Extent: YER. NLRC and
LA cannot interfere.
They can only inquire if
it is with bad faith or
grave abuse of
  discretion.      
Can hire as probationary
employees. No legal
obligation to absorb. Not
illegal to employ as
  Prerogative to Hire     probationary
Prerogative to Transfer
  Employees;      
Prerogative to
  Promote Employees      
P to change work
  schedule      
P to reduce working
  hours/days      
P to abolish a dept or
  section      
  P to reorganize      
  P to Reduce Personnel      
P to spin off a portion
  of its business      
P to close its business,
to transfer business
  ownership      
VALID. Company policy
about marrying the
P to Promulgate employees of the
  Company Policies     competitor
Reasonable Business
  Necessity Rule      
         
CLASSIFICATION OF
295 EMPLOYMENT      
  Regular Employment Employee has been engaged to   The employees held a
perform activities which are regular employment
usually necessary or desirable considering the activities
in the usual business or trade they performed are usually
of the employer. NATURE OF necessary or desirable in
 the business or trade. ;
They are not holding a
regular employment
because of the limited time
THE JOB to a fixed period
Activities are usually necessary
or desirable in the usual
business or trade of the YER
but the law does not consider
them sa REGULAR because the
engagement of the employee is
Nonregular only for a limited period for a
  Employment season or project    
there is a specific undertaking,
completion or termination Employed for one specific
determined as the time of the project and termination is
engagement regardless of the due to the completion of
  1. Project Employment years   the project is valid.
Janitors are regular
employees because their
work is necessary or
desirable in the usual
business or trade of the
employer FVR SKILLS
providing clients with
        janitorial services
He was a project employee
because his employment
was depending upon the
        availability of projects.
1. Done on a daily basis. THEIR
JOB BEGINS AND ENDS AT
SPECIFIC PROJECT OR DETERMINED OR
  UNDERTAKING DETERMINABLE TIMES    
2. Not commonly or habitually
performed. Not within the
regular or usual business of the
    employer    
PE may acquire regular status if
the same employer
continuously rehires the
employee for the same task in
different projects. They must
belong to the WORK POOL
which the YER draws workers They are regular
PROJECT EMPLOYEES for assignment to other employees although their
  ON REGULAR STATUS projects at its discretion.   job is on a project basis
Co-terminus with the work to
which the employee was
assigned. Not entitled with
  TENURE OF PE SEPARATION PAY    
Report of termination of
Employment needed in the
Public Employment Office,
failure is an indication that the
job is not PE but Regular
    Employment    
         
 A job where the employee was
2. Seasonal engaged to work during a
  Employment particular time of the year.    
Tenure: co-terminus with the
    duration of the season.    
If hired repeatedly, they
become regular seasonal
employees which cannot be
terminated without just cause.
During off-season, their jobs
are merely suspended. They
can get other jobs during off
    season    
Considering that there is
an employment contract
validly entered into
The decisive determinant is not between the YEE and YER.
the activities but the day The law does not prohibit
certain agreed upon by the fixed-term employment for
parties. DAY CERTAIN; time activities which are usually
must necessarily come necessary or desirable in
FIXED TERM although it may not be known the usual business of the
  EMPLOYMENT when.   YER
The clerk typist held a
regular employment
although the contract-to-
contract basis, usually
necessary or desirable in
the usual business or trade
        of the company
No, because their
engagement was only for a
period of one month.
Fixed-term agreement.
        DAY CERTAIN
Tenure; DAY CERTAIN,
  no necessity of notice      
         
Job those activities performed
are not usually necessary or
desirable in the usual business
  CASUAL EMPLOYMENT or trade.    
one that rendered at least 1
year of service, continuous or
broken, REGULAR EMPLOYEE to
the activity in which he is
employed. He cannot be
terminated without just cause
  CE on a regular status while such activity exists    
         
Employee, upon his
engagement, is made to
undergo a trial period to enable
the employer to determine his
fitness for regular employment
based on reasonable standards
PROBATIONARY made known to him at the time
296 EMPLOYMENT of engagement.    
 Although YEE was not
informed with the
standard, he failed to
adhere to the dictates of
common sense to adhering
to necessary work ethics
1. Contract of probationary ad basic skills. Dismissal is
  Requirements: employment   proper.
YER informed him the
standards for
2. YER should inform the regularization. YEE
standards of regularization at accepted the standards.
the time of his engagement. Noncompliance thereof
SUBSTANTIAL COMPLIANCE IS justifies the dismissal
    ENOUGH.   made.
18TH month probationary
employment of buiser is
6 months from the date of the valid because the labor
appointment up to the same code provides that the
calendar date of the 6th month parties may validly agree
Probationary period of following or depends on the on a longer period if there
  ordinary employees agreement   be a valid justification.
PP may go beyond 6 months if
there is an apprenticeship
agreement stipulating a longer
period. If there is already
apprenticeship, probationary
    status is no longer applicable.    
to give the employee a chance
to improve. It should be done
on or before the expiration of
the prescribed period
Extension of otherwise he will be
Probationary automatically become a regular
  Employment employee by operation of law.    
1. For just and authorized
causes prescribed by the Labor
  Grounds for dismissal Code    
The dismissal was vali. The
2. Failure to qualify as a regular employee was neglectful
employee in accordance with od his duties and failed the
the reasonable standards made standards set by the
known by the employer at the employer. The dismissal
time of his engagement. He can was affected 1 month
be dismissed any time prior to Not entitled for salaries for before the expiration of his
    the expiry of the PP the unexpired term PE
An employee who is
allowed to work after a
probationary period
shall be considered a
  regular employee      
         
TERMINATION BY
EMPLOYER DUE TO
THE FAULT OF THE
  EMPLOYEE      
Serious Misconduct - Series of Irregularities,
  wrong conduct and Disrespectful language, Theft,    
 transgression of some
established and
definite rule of action. Immorality
Order must be lawful and
reasonable, known to
employee, connected to the
  Willful Disobedience duty    
Neglect of Duty -
failure to give proper
attention to a task
expected of an
employee because of
carelessness or Gross and Habitual; Habitual
  indifference. absenteeism and tardiness    
Knowing misrepresentation of
Fraud - against the the truth or concealment of a
employer and work- material fact to induce another
  related to act to his or her detriment    
Breach of Trust - The employee holds a position
Willful and Related to of trust and confidence;
the performance of the cashier, bank teller, financial
duties and function of controller, director,
  the employee warehouseman    
Against the person of the YER,
his immediate family or
  Commission of a crime authorized representatives    
  Drug abuse      
Violation of Company
Rules and Regulations
based on the gravity of
the offense, position,
  habitualness      
  Staging an Illegal Strike      
Breach of Union
  Security Agreement      
Failure to comply with
  government regulation      
Sexual Harassment;
demanding or
requesting sexual favor
and must have
superior-subordinate
  relationship      
         
within reasonable period,
min of 5 days and must be Preventive suspension may
specific and indicating be legally imposed against
PROCEDURE FOR explicitly the circumstances the employee if subject to
TERMINATING AN surrounding the case. The investigation. Preliminary
EMPLOYEE FOR A JUST acts should be particular and step in an admin
  CAUSE: 1. Issuance of Notice to Explain must not use general terms. investigation
to give the employee the
fullest opportunity to be
2. Administrative hearing if heard, YEE must ask for it. In
    necessary RTC pwede  

YER will give to YEE a written If YEE feels aggrieved, he

    3. Issuance of notice of decision notice of decision indicating can contest the validity by
 the penalty for the offense.
Justification is needed. Must
include and cite reason for filing appropriate
dismissal. complaint with NLRC
         
If dismissal without
due process; dismissal
is illegal. Proof beyond
reasonable doubt of
the YEE's misconduct is
no required to
establish the validity of
the dismissal. Subsequent conviction of
Substantial Evidence is the employee has in effect
  enough.     nullified the NLRC decision.
         
AUTHORIZED CAUSES
FOR TERMINATING AN
EMPLOYMENT THAT
ARE NOT
ATTRIBUTABLE TO THE
FAULT OF THE
  EMPLOYEE      
YERS has the right that would
insure profit and mechanize or
modernize its business.
1. Installation of Labor Inherent prerogative of every
  Saving Devices employer    
It is a management
prerogative to abolish a
position which it deems no
Due to abolition of position, longer necessary, to cut
overhiring, decrease volume operational expenses so as
of business, it can exist even not to incur further losses
if there is no other person because of low passenger
Reducing personnel when the holding the same position. yield. The characterization
required services are more Even if there is no losses, but of an employee's services
than what is demanded by the the position itself and the as no longer necessary or
actual requirements of the nature of the services sustainable. Thus,
  2. Redundancy enterprise performed termination is valid.
1. abolition of redundant
positions must be done in good
faith 2. Fair and reasonable
criteria must be used in
ascertaining what positions are
    to be declared redundant    
Mode of reducing personnel to
prevent or minimize business
losses and thus protect and REDUNDANCY - unnecessary
preserve the employer's of the position, due to
viability. Due to lack of work, reorganization, over hiring
seasonal fluctuations, while RETRENCHMENT - to
reduction in volume, shortage, avoid business losses, due to
  3. Retrenchment recession and depression lack of work  
1. To prevent losses 2. Fair and
reasonable criteria for dismissal
and retaining employees 3.
    measure of last resort    

4. Closure of YERS initiated the closure. If
Establishment - even if the gov't forced the closure
there is no proof of and YER has no fault, YER is not
substantial losses or in required to give separation
  kahit in bad faith pa pay.
1. YER must PERSONALLY serve
a written notice indicating the
PROCEDURE FOR cause for termination at least 1
TERMINATING AN month in advance to the YEES,
EMPLOYEE FOR AN no posting to the bulletin board
  AUTHORIZED CAUSE: and DOLE
RELIEF AVAILABLE TO
AFFECTED EMPLOYEES
DUE TO AUTHORIZED
  CAUSES  
1. Grant of separation
pay - for the YEE to
have something on
which to fall back RATE FOR LABOR SAVING
  when he loses his job. DEVICE AND REDUNDANCY
RATE FOR RETRENCHMENT OR
CLOSURE NOT DUE TO SERIOUS
    BUSINESS LOSSES
RATE FOR CLOSURE DUE TO
    SERIOUS BUSINESS LOSSES
CAN AN EMPLOYEE BE
ENTITLED TO BOTH
SEPARATION PAY AND
  RETIREMENT PAY?  
In the absence of an EXPRESS
or IMPLIED prohibition in the
RETIREMENT PLAN or CBA, an
  FIRST OPINION employee is entitled BOTH
No because SP is relief for
termination of employment for
any authorized causes while TP
is relief given to employees
who retire or retired after
reaching a certain age or
  SECOND OPINION number of years in service
CLOSURE means COMPLETE
CESSATION OF BUSINESS
OPERATION when
RETRENCHMENT means for
the PREVENTION OF LOSSES
and CONTINUED OPERATION
WITH REDUCED MANPOWER  
MANDATORY
REQUIREMENT. Redundancy
program notice INCLUSIVE of
the CERTAIN details of the Failure for the notice will
program. NOT ENOUGH ANG sanction the YER in form of
PLAN LANG DAMAGES
   
Atleast 1 month pay or 1
month pay for every year of
ACTUAL service w/ever is
higher BASIS IS LATEST SALARY
For PIECE-RATE WORKERS -
Minimum wage For
SEASONSAL EMPLOYEES -
1/2 of their average
monthly pay during the
Atleast 1 month pay or 1/2 last season provided they
month pay for every year of worked for atleast 6
ACTUAL service w/ever is months during the given
higher year
For SALESMEN on
COMMISION Basis -
average commissions
during the past year of
NO SEPARATION PAY employment
   
CASE 1: Termination due to
redundancy; CONSIDERING
THERE IS NO PROVISION IN CASE 2: The CBA and
CBA against recovery of RETIREMENT PLAN have no
both, YES HE IS ENTITLED. He specific prohibition against
is still entitled in the the payment of BOTH
RETIREMENT PLAN. BENEFITS
There should be EXPRESS
INDICATION OF THE
ENTITLEMENT OF BOTH.
ABSENCE OF SUCH MEANS
NONE Depends on the RP. EITHER

TERMINATION DUE TO Not ipso facto makes him a
  ILLNESS sure candidate for dismissal.
Atleast 1 month pay or 1/2
month pay for every year of
ACTUAL service w/ever is
  Relief: Separation Pay higher
TERMINATION BY THE Constructive Dismissal or
  EMPLOYEE Involuntary Resignation
     
: Must have atleast one month
    notice, unless exceptional cases
    Voluntary Resignation
: Must have atleast one month
    notice to YER
Effect if no notice: employee
liable for damages. Yer cannot
compel YEE to work because it
would tantamount to
involuntary servitude. YER
cannot forfeit separation
    benefits also
     
     
     
     
Requisites: Must be
prohibited by law or
prejudicial to health,
Certification from
competent PUBLIC HEALTH
AUTHORITY that illness
cannot be cured within a Not ground for dismissal:
period of 6 months without HIV, HEPA B, PREGNANCY
medication RELATED
   
Brought about the harsh, Demotion without just
hostile and unfavorable cause; he was forced to
conditions set by the quit as a result of his
employer. Whether or not a demotion. YER failed to
reasonable person in the show any justification fro
YEE's position would have the transfer and the
felt to give up his position. demotion.
Quitting Employment Out of
Fear for his life  
On the basis of the quali,
Relief: Reinstatement (if ok training and performance
pa relations) or Separation of the employee, the
pay and backwages as prerogative to determine
appropriate relief the place is allowed
Formal renouncement or
relinquishment of a job by
an employee who for
personal reasons, cannot He resigned voluntarily.
work. Must be Can be inferred from the
unconditional, INTENTION wordings of the letter or
TO RELINQUISH memo.
Resignation still voluntary
when the YEE is allowed to
resign rather than be
dismissed for cause.  
If the YEE resigns because of
YER's threat to file criminal
action for estafa against him  
Bcoz of REORGANIZATION,
YEE was given an option to
resign or terminated  
Whoever prepared the letter
of resignation YEE or YER  
When effective? When there
is acceptance or approval of
YER  
Effect of acceptance? May
not be withdrawn without  
 consent of the YER
NOT ENTITLED TO
      SEPARATION PAY  
Deliberate, unjustified
refusal of an employee to
resume his work.
VOLUNTARY ACT OF
Constructive Resignation or RESIGNATION WITHOUT Moonlighting. Working to
    Abandonment of Employment NOTICE TO YER. another company
Absence + Overt acts
unerringly indicating that the
YEE don’t wanna work
      anymore.  
Notice to report for work
should be sent to the last AWOL then corresponding
      known address of YEE penalty and dismissal
Burden of proof is on the
      YER  
         
temporary separation of YEES
from service due to temporary
closure or suspension of
301 LAY OFF operations.    
    Relief: REINSTATEMENT    
         
Withdrawal from office,
employment or occupation
upon reaching a certain age or
after rending a certain number
302 RETIREMENT of years in service.    
Who? ALL regardless
of position, Except: 1. YEEs who have not
designation, status and rendered service for at least 5
  means of wages yrs    
2. YEEs in retail, service or agri
establishments regularly
employing not more than 10
    YEEs    
  WHEN?      
IF THERE IS Retirement
Plan, CBA or Regardless of age. Number Pwede kahit below 60 yrs
  Employment Contract years of service old  
IF THERE IS NO RP, CBA
  or EC Based on the Labor Code:    
    1. Optional Retirement Age 60 years for ordinary YEES  
50 years for underground
    : only made by the employee and surface mine YEEs  
         
55 years old - prof race
    2. Compulsory Retirement Age jockeys  
60 yrs old for underground
      and surface minign YEES  
      65 for regular YEEs  
         
IF THERE IS Retirement Plan, as stipulated but it should
  AMOUNT CBA or Employment Contract not fall below the floor limits  

    IF THERE IS NO RP, CBA or EC
     
Computation fo length of
    service is ACTUAL SERVICE.
  303 Offenses penalized:
Unfair Labor Practice of YERS
    and LO
of the labor code. If below,
YER must pay the difference.
Fund comes from the
contribution of both YEE and
YER. YER's contri must not
be less than the retirement
pay prescribed by the code.
22.5 days for every years of
service 15 days based on
latest salary, 5 days on cash
equivalent for incentive
leave and 1/12 if 13th
month pay due the YEE  
1/2 month salary of YEEs
who do not have fixed
wages  
Period business was closed
not included.  
Illegal Dismissal not a
criminal offense