TITLE I TERMINATION OF EMPLOYMENT ART 279.

. SECURITY OF TENURE SECURITY OF TENURE is the constitutional right granted the employee, that the employer shall not terminate the services of an employee except for just cause or when authorized by law. An employee that has been dismissed illegally is entitled to: a. Reinstatement b. Backwages ART 280. REGULAR AND CASUAL EMPLOYMENT REGULAR EMPLOYMENT- One wherein an employee is engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. TEMPORARY EMPLOYMENT-One wherein an employee is engaged to work on a specific project or undertaking which is usually necessary or desirable in the usual business or trade of the employer, the completion of which has been determined at the time of the agreement of the employee. SEASONAL EMPLOYMENT-One wherein an employee is engaged to work during a particular season on an activity that is usually necessary or desirable in the usual business or trade of the employer. PROBATIONARY PERIOD OF EMPLOYMENT - the period needed to determine the fitness for the job, i .e., the time needed to learn the job. It is period during which the employer may determine if the employee is qualified for possible inclusion in the regular force. NOTE: The standard which the probationary employee is to meet must be made known by the employer to the employee at the time of the engagement. Probationary employees may be terminated for the same causes as a regular employee, except that there is an additional ground failure to meet the standard. Is it necessary that probationary employment be for a period of 6 months? No. Provided that the following requisites concur: it is done before the lapse of 6 months;

2.employee must be advised of such extension; 3. employee must agree. EFFECT IF PROBATIONARY EMPLOYEE IS ALLOWED TO WORK BEYOND 6 MONTHS: If the probationary employee is allowed to work beyond the period of 6 months or the agreed probationary period, said employee become a regular employee by operation of law. Under the Labor Code, an employee who is allowed to work after a probationary period shall be considered a regular employee. (Art. 281.) ART. 282. TERMINATION BY EMPOYER JUST CAUSES: 1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; 2. Gross and habitual neglect by the employee of his duties; 3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly organized representative; 4. 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 representative; and 5. Other causes analogous to the following: ART. 283- 284 AUTHORIZED CAUSES OF TERMINATION BY THE EMPLOYER: 1. The installation of labor-saving devices (automation) 2. Redundancy (superfluity in the performance of a particular work) 3. Redundancy to prevent losses (there is excess of employees and employer wants to prevent financial losses) 4. The closing or cessation of operation of the establishment or undertaking UNLESS the closing is for the purpose of circumventing the provisions of the Labor Code. 5. Illness a. If illness is incurable within 6 months and is b. deleterious to his health or his co-employees. c. certification from public heath officer that illness is incurable within 6 months. STANDARDS UNDER WHICH AN EMPLOYER MAY RETRENCH: 1. Losses expected should be imminent and substantial.

2.It must be reasonably necessary and likely to effectively prevent the expected losses 3. Alleged losses if already incurred, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence. ART. 285. TERMINATION BY EMPLOYEE TERMINATION BY THE EMPLOYEE An employee may terminate WITHOUT JUST CAUSE the employeeemployer relationship by serving a WRITTEN NOTICE on the employer at least one month in advance. . The employer upon whom no such notice was served may hold the employee liable for damages. An employee may put an end to establish WITHOUT SERVING ANY NOTICE on the employer for any of the following just causes: 1. Serious insult by the employer or his representative on the hour and person of the employee; 2. Inhuman and unbearable treatment accorded the employee by the employer or his representative; 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and 4. Other causes analogous to any of the foregoing. SEPARATION PAY In case of termination due to a) THE INSTALLATION OF LABOR-SAVING DEVICES OF b) REDUNDANCY, - the worker affected thereby shall be entitled to a separation pay equivalent to at least one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. c) RETRENCHMENT TO PREVENT LOSSES and CLOSURES OR CESSATION OF OPERATIONS (NOT due to serious business losses or financial reverses) - The separation pay shall be equivalent to one (1) month pay or at least month pay for every year of service, whichever is higher. d) In the case of ILLNESS - separation pay equivalent to at least one month salary or to month salary for every year of service, whichever is greater, a fraction of at least 6 months shall be considered one (1) whole year. NOTE: If CLOSURE is due to severe financial losses, it is still debatable whether or not separation pay should be given.

I f you are able to prove that such portion of capital (10%) investment has been impaired, the employer should be exempt for the payment of separation pay.

GUIDELINES TO DETERMINE THE VALIDITY OF TERMINATION: 1. Gravity of the offence 2. Position occupied by the employee 3. Degree of damage to the employer 4. Previous infractions of the same offense 5. Length of service ART 287. RETIREMENT RETIREMENT AGE -The age of retirement is that specified in the CBA or in the employment contract. If it is not specified, 1. 60-65 -retirement is optional but the employee must have served at least 5 years ; 2. 65-compulsory retirement age (no need for 5 years of service)

BENEFITSA retiree is entitled to a retirement pay equivalent at least month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Unless the parties provide for broader inclusions, the term one half (1/2) month salary shall mean: 15 days plus 1/12 of the 13th month pay and the cash equivalent of NOT more than 5 days of service incentive leaves. (22.5 days per year of service) NOTE: Exempted from the payment of retirement pay are retail, service and agricultural establishments or operations employing NOT more than ten (10) employees or workers. BOOK SEVEN TRANSITORY AND FINAL PROVISIONS TITLE II PRESCRIPTION OF OFFENSES AND CLAIMS ART. 291. MONEY CLAIMS PERIODS OF PRESCRIPTION

A. MONEY CLAIMS-The prescriptive period is 3 years from the accrual of the cause of action. B. ULP -The prescriptive period of filing a case for ULP is 1 year from the accrual of the cause of action. ILLEGAL DISMISSAL The prescriptive period of filing a case for illegal dismissal is 4 years from the accrual of the cause of action. (Art. 1146) NOTE: The period of prescription mentioned under Article 281, now Article 292, of the Labor Code, refers to and is limited to money claims, all other cases of injury to rights of a workingman being governed by the Civil Code. Hence, reinstatement prescribes in 4 years. POST- EMPLOYMENT FORMS OF REINSTATEMENT: 1. ACTUAL OR PHYSICAL REINSTATEMENT -the employee shall be admitted back to work; 2. PAYROLL REINSTATEMENT - the employee is merely reinstated in the payroll.

PERIOD COVERED BY THE PAYMENT OF BACKWAGES: Backwages shall cover the period from the date of dismissal of the employee up to the date of actual reinstatement. SECURITY OF TENURE: An employer CANNOT terminate the services of an employee EXCEPT for a just cause or when authorized by law. REQUIREMENTS OF DUE PROCESS BEFORE AN EMPLOYEE CAN BE REMOVED: 1. written notice to apprise the employee of the particular acts or omission for which his dismissal is sought and is hereby considered as the proper charge; 2. ample opportunity to be employee to be heard and if the employee so decides, with the assistance of counsel; and 3. written notice informing the employee of the employers decision to dismiss him. Under the so-called WENPHIL DOCTRINE if just or authorized cause exist but the affected employees right to due process has been violated, the dismissal is valid but the employee is entitled to damages by way of indemnification for the violation of the right.

On Jan. 27, 2000, the SC in the case of SERRANO vs. ISETANN et. al. Disregarded this WENPHIL DOCTRINE and ruled that if the employees right to due process is violated, his dismissal becomes illegal regardless of the existence of a just and authorized cause. REINSTATEMENT - Restoration of the employee to state from which one has been removed or separated without loss of seniority rights and other privileges. WHAT HAPPENS IF THERE IS AN ORDER OF REINSTATEMENT BUT THE POSITION IS NO LONGER AVAILABLE? If the position previously occupied by the employee is no longer available at the time of reinstatement, he should be given a substantially equivalent position. If THERE IS NO SUBSTANTIALLY EQUIVALENT POSITION: If no substantially equivalent position is available, reinstatement should not be ordered because that would in effect compel the employer to do the impossible. In such a situation, the employee should merely be given separation pay of the one month salary for every year of service (1:1). CIRCUMSTANCES WHEN COMPANY MAY NOT REINSTATE DESPITE ORDER OF REINSTATEMENT 1. Transfer of business ownership;There is no law requiring a purchasing corporation to absorb the employees of the selling corporation. A fortiori, reinstatement of unjustly dismissed employees CANNOT be enforced against the new owner UNLESS there is an express agreement on the assumption of liabilities by the purchasing corporation. 2. When reinstatement is rendered impossible due to the abolition of the position; 3. When the business has closed down; 4. Physical incapacity of employee 5. Doctrine of Strained Relations-When the employer can no longer trust the employee and vice-versa, reinstatement could not effectively serve as a remedy. Applies only to positions which require trust and confidence; or Under the circumstances where the employment relationship has become so strained to preclude a harmonious working relationship, and that all hopes at reconciliation are nil after reinstatement, it would be more beneficial to accord the employee backwages and separation pay. BACKWAGES-Relief given to an employee to compensate him for lost earnings during the period of his dismissal. How computed: Under existing law, backwages is computed from the time of the illegal dismissal up to time of actual reinstatement.

 WHAT ARE INCLUDED IN THE COMPUTATION OF BACKWAGES 1. transportation and emergency allowances 2. vacation or service incentive leave and sick leave 3. 13th month pay. However, facilities such as uniforms, shoes, helmets and ponchos should NOT be included in the computation of backwages. REASON: said items are given free, to be used only during official tour of duty not for private or personal use. CIRCUMSTANCES THAT PREVENT AWARD OF BACKWAGES: 1. 2. 3. 4. 5. 6. death of the employee physical and mental incapacity business reverses closure of business reinstatement of dismissed employee confinement in jail