POST EMPLOYMENT

Present Law - EEs are guaranteed the right to the security of

tenure.
Old Law 1-month notice or giving separation pay

Security of Tenure: an Ee cannot be dismissed without just
cause or without authorized cause.
available only to REGULAR Ees
does not mean that non-regular Ees are not
entitled, they are also
entitled in a QUALIFIED manner. They cannot be
dismissed without just cause or authorized causes
during the term of their employment
managerial Ees are also entitled loss of
confidence must have a basis (reasonable ground
to believe that they committed an offense
indicating loss of confidence)
Rank and File higher level of proof

Art. 285 Regular Employment
Activities, which are desirable or necessary in the usual
business or trade of the Er
not determined by the name given to it but by the nature
of the activity performed or the nature or work
>> necessary or desirable to the business of the Er

*Art. 283
*Art 284

1) dismissal for just cause
a) serious misconduct
b) willful disobedience
c) gross or habitual neglect of duty
d) commission of a crime against the
Er/Representatives/Immediate
Family
e) analogous

2) dismissal for authorized causes
a) labor saving devices
b) retrenchment
c) closure of establishment
d)

Remedy Security of Tenure
1) illegal dismissal
Injunction is not allowed
only remedy: file a complaint for illegal
dismissal before the LA
2) entitled to reinstatement with backwages from
dismissal to actual reinstatement without loss of
seniority rights
1. locally employed workers
reinstatement with backwages
moral and exemplary damages
and attorneys fees
+ present additional proof and
apply the Civil Code
+ when MD and ED are proper
2. migrant workers
Relief refund of placement fee,
interest of 12% per annum and
withheld wages

Reinstatment restoration to the position which the Ee held
at the time of his dismissal.
restoration to his former position
Example: Supervisory Position cannot be reinstated to
a Managerial Position (follow the definition position HELD
at the time of dismissal)

Without loss of Seniority Rights treated as if he has not
been absent from work or dismissed, both in terms of rank,
position and continuity of employment.
Example: Service of 10 years and took the NLRC 3 years
to decide with finality the complaint for illegal dismissal =
Length of service would be 13 years. Incude the time when
the case was pending
as if there was no dismissal at all

Circumstances that may bar or render the implementation of
Reinstatement IMPOSSIBLE or INEQUITABLE:
1. During the pendency of the illegal dismissal case,
the position of the employee was abolished.
(Position no longer exists)
2. Because of severe losses, the Er reduced or
drastically reduced its personnel
3. Business has closed down, even if the dismissal
was found to be illegal
Relief: The Ee would be entitled or awarded
Separation Pay in lieu of reinstatement
+ One month pay for every year of service

Found other employment it will NOT bar his
reinstatement
natural for a dismissed Ee to find another job
choice of the Ee to go back or stay in his new Ee

Backwages a form of relief that restores the lost earnings
of an illegally dismissed Ee
not a cause of action - legality of dismissal
separate and distinct from Reinstatement
backwages without reinstatement and vice-versa
backwages VS. unpaid wages**
BW: compensation the Ee could have earned had
he not been dismissed (no service rendered)
UW: compensation for services rendered but not
paid by the Er

Award of LIMITED or NO backwages
a) if the Ee was dismissed for an offense that does
not warrant the penalty of dismissal (it will absolve
the Ee if Full BW)
b) LA may not award if the dismissal was done in
Good Faith
c) When it is found out that there was not dismissal at
all



FULL Backwages
a) proper if the Ee was dismissed without any cause
whatsoever
b) Ee was dismissed even though there is a prohibition
stated by law
*Prohibited Dismissal

AMOUNT of BW to be awarded
*Bustamante Doctrine
BWs to be awarded to an illegally dismissed employee
should not be diminished or reduced by his earning
elsewhere (GR)

Liability of Corporate Officers for BWs or Damages Illegal
Dismissal
most cases include the President and Manager who
signed the termination memo
GR: They cannot be held Solidarily Liable, separate and
distinct (Corporate Veil)
EXC: corporate officer acted in bad faith, they may be
held solidarily or personally liable

*Art 106 Principal UNPAID WAGES only

*PAL vs NLRC dismissed for currency smuggling.
petition for injuction was filed before the NLRC and not a
complaint for illegal dismissal
injunction is not a proper remedy
NLRC can only issue an injunction if there is a labor
dispute
illegal dismissal is not a labor dispute

PREROGATIVES

EMPLOYER
1) whom to hire
2) place Ees on probationary status
3) right to promote Ees
4) right to transfer Ees from one position to another
5) change the work schedule
6) reduce its personnel
7) abolish a department or section
8) regorganize the structure
Ees cannot validly complain
LA or Courts cannot question the exercise of
management prerogatives unless there is grave abuse
of discretion

*Homeowners Bank Case
accountant transfer of office
SC: disobedience to a transfer order, an exercise of an
inherent prerogative. Failure to comply is a ground for
dismissal.


JUST CAUSES FOR DISMISSAL
1) serious misconduct or willfull disobedience of the
Ee of the order of the Er
(1) must be serious and (2) work connected
work related
if not serious penalty lesser than dismissal
will be imposed (suspension/warning/reprimand)
determined by circumstances of each case
*misappropriation of company funds
*fighting within the premises
*drugs

disobedience
order must be lawful
order must be known
order must be connected to the
work of the Ee, must be part of
the duties of the Ee
disobedience must be wilfull
disobedience to an unlawful
order will not constitute a
ground for dismissal

*Samson vs NLRC
Christmas party uttered words against the
President (BS si Pres)
President dismissed the Ee from employment
complaint for illegal dismissal
SC: there was a misconduct but it was not
serious to warrant a dismissal

*Dela Cruz vs NLRC
dismissed Ee shouted at the company
physician (expletive)

*Autobus Workers
dismissed Ee said (expletive)

DC and Autobus utterance of those words
constitutes serious misconduct. There was
disrespect against a superior.


2) gross or habitual neglect of duty
neglect of duty must be both gross and habitual
not necessary that the Er sustain damage as a
result of the duty

3) willful breach of trust
Ee holds a position of trust and confidence
(usually managerial Ees and those with custody of
funds)

4) commission of a crime agains the person of the
Er/Immediate Family/Representative
against the person of the Er, Im Family or
Representative
crime against persons
prior conviction is not required

5) analogous causes
violation of rules and regulations
the rule itself would provide the
crimes of offenses

*Stamford Case
company rules 30 days
company dismissed Ee
SC: proper serious misconduct

violation or breach of union security agreement
CBA stipulation: membership of
good standing in a union
Er must comply with the agreement

staging an illegal strike
only the union members who
participated in the strike

illegal acts during a strike
those who committed such illegal
acts


defiance of retrun to work order
all who defied such order will be
dismissed

sexual harassment
act of demanding sexual favor of
someone who has moral
ascendancy over another
regardless if the sexual favor was
done or not
condition of hiring, promotion or
more favorable terms
sexual advances impair or result in
an hostile environment
refusal to grant results in
discrimination
Victims in a work environement
+ Ee or an applicant for
employment
+ Domingo vs Ayala

Dismissal for JUST Cause
1) you should give a written notice specifying the
ground/s for dismissal
2) Ee opportunity to explain his side
3) Hearing if necessary with the assistance of counsel
if desired by the Ee
4) A decision must be rendered
5) If dismissed written notice of dismissal
failure to give Ee the opportunity to
be heard
lack of procedural due process
does not invalidate the dismissal,
neither will it render the dismissal
illegal or ineffectual. The employer
will be liable for indemnity, left to the
sound discretion of the court
burden of proving the legality of
dismissal is on the Er
substantial evidence
acquittal in a criminal case will not
render the dismissal ineffective

Termination of Non-Regular Employment

3 Types of NRE
1) project
job where the Ee is engaged to do a specific
undertaking or project which has been determined
at the time of engagement
not negated by the number of years for the
project is to be finished or accomplished

2) seasonal
determining factor is the particular season (e.g.
harves, planting and Christmas)
tenure is the season itself, when the season
lapses then the Ees are also terminated

* Fixed Term Employment

3) casual
job wherein the acitivies performed are not
usually necessary or desirable in the usual
business or trade of the Er

4) probationary employment
trial period to determine fitness for
regularization
must be expressed in writing
6 months (Labor Code)
Academic and Non-Academic Teaching
Personnel
3 consecutive semesters high school
6 consecutive semesters college
9 consecutive terms Tri-mester
can be extended
terminated for any just causes mentioned by
law or fails to attain the fitness for regularization
termination can be made before the 6 month
period would elapse
allow the Ee to work after 6 months
automatically becomes a regular employee

Termination Economic Reasons
1) labor saving devices
will result in reduction of workforce

2) redundancy
services of an Ee are in excess of what is
needed by its economic operations (e.g. overhiring
of workers)
Requisites:
a) good faith on the part of the Er
b) fair and reasonable criteria should be followed
not necessary that the last in, first out policy
should be followed

3) retrenchment
reduction of personnel, resorted to by the Er to
prevent or minimize losses
Requisites:
a) must be resorted to in order to prevent losses
b) expected losses should be imminent
actual losses incurred must not be minimal,
its must be substantial
c) retrenchment must be resorted to as a last
resort
may be resorted even before losses are to be
experienced

4) closure of business
permanent closure total or partial
*relocation of plant
Procedure:
a) notice of termination serve to the Ees
affected and to the Department
of Labor
b) notice must be personally served to the Ees
posting is not enough
c) must be served at least 1 month before the
intended date of termination
Non-observance of 1 month period the Er will be
held liable for indemnity based on the sound
discretion of the LA or the Courts

Relief of Ees affected by Termination Eco Reasons
1) Separation Pay
a. Installation of LSD/Redundancy 1
month for every year of service
b. Retrenchment/Closure not due to serious
business losses 1 month or at least
month for every year of service,
whichever is higher.
Computation latest salary