Finals Flashcards
Purpose for labor law
Social justice in all phases of nat’l development
- regulate property, create economic opportunities, afford full protection to labor
Basic workers’ rights
- organize
- collective bargaining
- peaceful concerted activities, to strike
- security of tenure
- work under humane conditions
- living wage
- participate in policy and decision-making processes
Rule on retrenchment (requisites)
1) Done to prevent losses. (QUAL: Losses must be serious, actual and real)
2) Written notices were given to workers and to DOLE at least 1 month before
3) Separation pay is paid
Twin notice rule (Olympia Housing)
(1) a written notice specifying the ground/s for termination, + reasonable opportunity within which to explain his side; and (2) a written notice of termination indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.
Past practice (what to consider)
1) Regularity/Continuous
2) Voluntariness
3) Deliberate intent
4) Done over a long period of time
5) * Uniform
6) * Unconditional in nature
Non-diminution of benefits
Any benefit enjoyed by employees can’t be reduced/diminished/discontinued/eliminated
Rule on non-diminution of benefits
1) Grant of benefit is founded on policy/has ripened into practice after a long period
2) Practice is consistent and deliberate
3) Practice is not due to error in the construction/application of doubtful or difficult question of law
4) Diminution or discontinuance is done unilaterally by the employer
Company policies
Policies and regulations (not contrary to law or grossly oppressive) regarding all aspects of employment that are generally binding and valid on the parties and must be complied with
Company practice v. company policy
Policies are written down
Dismissal due to inefficiency at work
1) Set standards of conduct and workmanship upon which to judge the employee
2) The standards were communicated to the employee
3) The communication was made a reasonable time prior to the employee’s assessment
Just causes (Art. 282)
1) Serious misconduct
2) Willful disobedience
3) Gross and habitual neglect
4) Fraud or willful breach of the trust reposed in him
5) Commission of a crime against the person of his employer/immediate member
6) Analogous circumstances
Twin notice rule
1) Notice to explain
2) Hearing
3) Notice of Termination
Termination of OFWs
1) Just/authorized cause
2) Compliance with procedural due process reqs
Construction in favor of labor
All doubts in the implementation and interpretation of the Code and its IRR is to be resolved in favor of labor
When does Art. 4 apply?
1) When there exists an extraordinary circumstance that justified deviation from the rules
2) If doubt exists
3) If there is a dispute in implementation
Management prerogative
Right of an employer to regular all aspects of employment (inc work assignment, working processes, regulations, transfer, supervision, lay-off, discipline, dismissal and recall)
Limits to management prerogative
1) Law
2) CBA
3) General principles of fair play and justice
Redundancy
Employee is serving a function the company no longer needs/a function that some other employee is already serving
Guidelines in implementing redundancy
1) Who is the less preferred status
2) More efficient
3) More senior
Transfer v. Promotion
Transfer: movement from one position to another of equal rank, level, or salary without break in service
Promotion: Advancement from one position to another with an increase in duties and responsibilities (usually accompanied by an increase in salary)
Constructive dismissal
Involuntary resignation resorted to when continued employment becomes Impossible, Unreasonable, or unlikely
- demotion in rank or diminution in pay
- Clear discrimination, insensibility or disdain by employer
Labor-only contracting
1) Contractor does not have substantial capital or investment related to the job AND
2) Workers are performing activities directly related to the principal business of the employer
OR
1) Contractor has no right to control over the performance of the work of the employee
Bonus
An amount granted and paid to an employee for his industry and loyalty
GOCCs
When they have an original charter: under Civil Service Code
When they’re organized under Corpo Code: Labor law
Permanent Teacher Rule (Private School)
1) Teacher is a full-time
2) Rendered 3 consecutive years
3) Service was satisfactory
Rules for non-permanent teachers
Manual of Regulations for Private Schools
Managerial employees
1) Customarily and regularly direct the work of two or more employees
2) Have the authority to hire/fire others/ can make suggestions and and recos
Managerial staff
1) Performs work directly related to management policies
2) Exercises discretion and independent judgement
3) Regularly and directly assists a managerial employee w/ management
4) Execute under gen. supervision, specialized/technical lines
5) Eexecute special assignments and tasls
6) Not more than 20% of the workweek’s hours to activities not directly related to the work described above
Employer
Any person acting in the interest of an employer, directly or indirectly
Employee
Any person in the employ of an employer
Economic realities test
If the employee is highly dependent (at the beck and call, is required to report every day)
Four-fold test
1) Power of selection
2) Control re: means and methods to accomplish work
3) Power to dismiss
4) Wages
How to determine who is a managerial employee?
1) Job description
2) Done on a day-to-day basis
Types of Managerial Employees
1) Top management (COs & VPs)
2) Middle (GMs, and others)
3) First-line (Supervisors)
First-line managers
Those responsible for the work of others. They direct operating employees only.
Interest: That the work of rank-and-file is carried out
Middle Managers
Direct the activities of other managers and sometimes also those of operating employees.
Interest: That of the employer
Top Managers
Responsible for overall management of the organization. Establishes OPs
Categories of managerial employees
1) Managers
2) Supervisors
Control Test
When the employer reserves the right to control the manner and means used to achieve the result
Factors to consider in the control test
1) Skills required
2) Source of instrumentalities and tools
3) Location of the work
4) Duration of the relationship
5) Extent of employee’s discretion over when and how long to work
6) MOP
7) Employee’s role in hiring and paying assistants; Whether the work is part of regular business or not
8) Provisions of employee benefits, tax treatments
Two tier test
1) Employer’s power to control means and methods
2) Underlying economic realities
Quantum of proof (EE-ER)
Substantial evidence, such amount of relevant evidence that a reasonable mind might accept as adequate to justify a conclusion
Corporations
GEN RULE: An officer may not be held liable for the corp.’s labor obligations UNLESS he acted with evident malice and/or bad faith in dismissing the employee
Where to apply doctrine of piercing the corporate veil
1) When not to do so would defeat public convenience
2) Fraud cases
2) Alter ego cases
Effect of piercing the corporate veil
The corporation and its persons who are normally distinct from it, are treated as one and they all adjudged liable
How to hold an officer personally liable for corporate obligations
1) Complaint must allege gross negligence/bad faith
2) Proof that they acted in bad faith
Valid termination due to willful disobedience
1) Conduct must have been willful, characterized by a wrongful and perverse attitude
2) Order violated must have been reasonable, lawful, made known to the employee, and pertains to the duties which he had been engaged to do
When is misconduct/improper behavior a just cause
1) Serious
2) Related to the performance of the employee’s duties
3) Employee has become unfit to continue working for the employer
Permissible job contracting
1) Contractor carries out a distinct and independent business and undertakes the contract work on his account
2) Has substantial capital or investment
Trilateral relationship (Legitimate)
1) Principal
2) Contractor
3) Contractual worker
Section 6, DOJ 174
1) Cabo
2) Work due in-house agency
3) Work due in-house cooperative
4) Lock-out
5) Union member
6) Currently being performed by regular employees
7) Signing of waivers, resignation letters, blank payrolls, etc.
8) Repeated hiring with short duration
9) Signing contract fixing period of employment shorter than that in the Service Agreement
10) Other practices designed to circumvent the security of tenure
Implication of being registered with DOLE
Creates presumption that the contractor is legitimate.
When is job contracting allowed?
1) Contractor carries on an independent business
2) Contractor has substantial capital or investment
Effect of termination of contracted employment
1) If due to authorized causes, all benefits are paid by the party at fault
2) If due to expiration of the Service Contract, employee may wait for reemployment or ask it from the contractor
10 factors to consider in independent contractor relationship
1) WON contractor was carrying on an independent business
2) Nature and extent of the work
3) Skill required
4) Term and duration of the relationship
5) Right to assign performance of specified pieces of work
6) Control and supervision of workers
7) Power of employer re hiring, firing, payment
8) control of the premises
9) Duty to supply premises, tools, appliances, materials and labor
10) Mode, manner and Terms of payment
Piece worker vs. Partner
Piece worker
1) Paid for work accomplished
2) Paid wages by employer
3) Paid for work accomplished without concern to the profit derived by the employer
4) Employer supervises
Partner
1) Contributes anything to the employer’s capital
2) Paid directly by customer
3) Proceeds from his trade are divided with the partner
4) Employer doesn’t exercise control
What is a person illegally dismissed entitled to? (Art. 294)
Reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances and other benefits (or their monetary equivalent)
Regular employee (Art. 295)
1) Perform activities usually necessary/desirable in the usual business or trade of the employer OR
2) Has rendered at least 1 year of service, regardless of whether such service is continuous or broken w/ respect to the activity in which he employed
Can probationary periods be extended?
Yes. So long as:
1) it’s requested by the employee/both parties mutually agree OR
2) Nature of work requires that the period be more than 6 months
Requirements to validly hire probationary employees
1) Contract provides for a probationary period not more than 6 months
2) Contract has metrics by which the employee will be evaluated
Metrics
Categories/characteristics by which you are evaluated (adaptability, performance, capability to work with others, etc.)
Project employment
1) Project employment contract
2) Project is clearly defined
3) * Employee is only employed for the duration of the project
What is a project?
Particular job/undertaking within the regular business of the employer but is distinct and separate and identifiable from the undertakings of the company. Such job or undertaking begins and ends at determined or determinable times
Term employment
1) Term employment contract
2) Specified start and end date
3) Both parties must have the same standng
Seasonal
Employed for a specific season
Regular seasonal employment
Repeatedly rehired for the next seasons
Casual employment
1) Perform work that is not usually necessary or primarily related to the employer’s business or trade
2) Can’t exceed 12 months
Regular employers vs. all others
Have security of tenure; can only be dismissed for just cause or authorized cause
Process of termination for exceptions
1) Send formal notice of termination
2) Give final pay
Are rotation of employees allowed? Yes.
1) Must be temporary in nature
2) Done to address financial situation of company
Authorized causes
1) Installation of a labor saving device
2) Redundancy
3) Retrenchment to prevent losses
4) Retrenchment due to serious financial losses
5) Closure
6) Disease
Regular
Employee performs activities which are usually necessary or desirable in the usual business or trade of the employer
Project
Employment is fixed for a specific project/undertaking, the completion or termination of which has been determined at the time of engagement of the employee
Primary standard of determining regular employment
Reasonable connection between the particular activity performed in relation to the usual trade of the employer
How to find reasonable connection?
Consider nature of the work performed and its relation to the scheme of the particular business or trade in its entirety
For authorized learnership or apprenticeship
Must be learnable or appreciable for it to go beyond 6 months
Termination of probationary
1) Failure to meet standards
2) Just cause
3) Authorized by existing laws
Power of employer to terminate probationary employees is conditioned by the facts that:
1) Must be exercised in accordance with the specific requirements of the contract
2) Dissatisfaction of the employer must be real and in good faith
3) Must have no unlawful discrimination in the dismissal
To prove employees really are project-based, employers must prove:
1) Duration and scope of employment was specified at the time they were engaged and
2) There indeed was a project
When are project-based contracts valid
1) Agreed upon knowingly and voluntarily
2) Absent vitiations of consent
3) Made on more or less equal terms
4) Period was not imposed to avoid tenurial security
Rule on Hours of Work
GEN: 8 hours a day
EXC:
1) GOCCs w/ original charter
2) Managerial employees
3) Officers or members of a managerial staff
EXC:
1) Members of the family dependent on him for sustenance
2) domestic helpers
3) Those in personal service of another
4) Pakyaw basis (only if unsupervised)
5) Field personnel
Hours of Work for Health personnel
GEN: Cities and municipalities with a population of at least 1M/hospitals and clinics with min. 100 bed capacity, go for 8 hrs, 5 days a week
EXC: If they need 6 days or 48 hours, there must be additional compensation of at least 30% regular wage for the 6th day.
Hours worked include:
1) Time they’re required to be on duty/at a prescribed workplace
2) Time they’re permitted to work
3) Rest periods of short duration during working hours
Meal periods
Min. 60 minutes.
EXC: May be 20 minutes or more but that has to be compensated when:
1) Involves non-manual work
2) They operate min. 16 hrs a day
3) There’s actual/impending emergencies/urgent work
4) Work is necessary to prevent serious loss of perishable goods
Night shift differential
At least 10% regular wage for each hour performed between 10PM-6PM
Overtime work
GEN: Work is allowed beyond 8 hours BUT compensation (regular wage) + 25% of regular wage
Overtime work during holidays/rest days (Art. 87)
Paid first 8 hours on a holiday/rest day + 30% thereof
Emergency overtime work allowed when (Art. 89, LC)
1) At war/at any other national/local emergency
2) Necessary to prevent loss of life or property or in case of imminent danger to public safety
3) Urgent work to be performed to avoid serious loss or damage to the employer
4) Necessary to prevent loss/damage to perishable goods
5) Completion/continuation starts before 8th hour is necessary to prevent serious obstruction/prejudice to the operations
Weekly rest day (Art. 91)
24 hours after every 6 working days
When employer may require work on a rest day (Art. 92)
1) Actual/impending emergencies, to prevent loss of life and property, or imminent danger to public safety
2) Urgent work to be performed to avoid serious loss
3) Abnormal pressure of work due to special circumstances
4) Prevent loss or damage to perishable goods
5) Nature of work requires continuous operations and stoppage of work may result in irreparable injury or loss
6) Analogous or similar circumstances
Compensation during rest days/holidays/Sundays (Art. 93)
Scheduled rest day: +30%
No regular work/restdays: +30% on Sunday
Special holiday: 30%
Scheduled rest day plus holiday + 50%
Lectures, meetings, training programs. (Sec. 6, B3 R1 S1-11 IRR)
Not working time if:
1) Outside regular working hours
2) Voluntary attendance
3) Doesn’t perform any productive work during such attendance
Overtime and premium pay for public utility employees and non-profit workers (Sec. 9, B3 R1 S1-11 IRR)
Entitled to the overtime and premium pay
Compulsory overtime work (Sec. 10, BR 41 S1-11 IRR)
1) At war/at any other national/local emergency
2) Necessary to prevent loss of life or property or in case of imminent danger to public safety
3) Urgent work to be performed to avoid serious loss or damage to the employer
4) Necessary to prevent loss/damage to perishable goods
5) Completion/continuation starts before 8th hour is necessary to prevent serious obstruction/prejudice to the
6) * Necessary to avail of favorable weather conditions
Part-time workers
Wages are in proportion to the number of hours worked
Compressed Work Week (DOLE Advisory No. 2, 2004)
1) Expressly and voluntarily supported by the majority
2) For firms involved with substances/hazardous conditions, they need certification from an accredited safety org.
3) DOLE regional office is notified
Rest? (Sec. 4 IRR)
1) Stops working
2) May rest completely
3) May leave his workplace to go elsewhere whether within or outside work premises
Work performed is considered hours worked when: (Sec. 4 IRR)
1) Done with the knowledge of his employer/supervisor
2) Work was necessary or
3) Benefited the employer or
4) Employee couldn’t abandon his work
Time when employee is inactive for reasons of interruptions beyond his control (Sec. 4 IRR)
1) Imminence of resumption of work requires the employee’s presence OR
2) Interval is too brief to be used effectively
Idle time
Time employee is not working
Rules on Idle time
GEN: Not compensable
EXC: Coffee break (>20 mins), or when for the benefit of the employee
Continuous Work
During the time he is not working, he cannot leave and completely rest
Waiting Time (Standards)
1) Is waiting an integral part of his job?
2) Is he required/engaged by an employer to wait?
Travel from Home to Work
GEN: Not compensable; it’s a regular incident of employment/
EXC: When they receive an emergency call outside regular working hours, travel is working time.
Travel all in a day’s work
GEN: Counted as hours worked
EXC: When her travel is to home afterwards
Travel away from home
GEN: Counted as hours worked when it cuts across the employee’s workday
Shortened Meal break upon employee’s request
1) Employee voluntarily agrees in writing to a shortened meal time of 30 mins. Willing to waive overtime pay
2) No diminution of salary or other benefits
3) Work doesn’t involve strenuous physical exertion and work provides adequate coffee breaks
4) Value from the new work arrangement = to compensation due them for the meal period
5) Overtime pay becomes due and demandable if they’re made to work beyond 4:30PM
6) is of temporary duration
Burden of proving overtime (employee)
1) That it happened
2) Was approved
Ordinary working day (Computation)
(Number of hours OT work) x (Regular Hourly rate) x (125%)
Scheduled rest day/special day (Computation)
(Number of hours OT work ) x (Regular Hourly rate) x (130%) x (130%)
Regular holiday (Computation)
(Number of hours OT work ) x (Regular Hourly rate) x (200%) x (130%)
Regular holiday + scheduled rest holiday (Computation)
(Number of hours OT work ) x (Regular Hourly rate) x (200%) x (130%) x (130%)
Preference of employee for rest day
Must be made known in writing 7 days before
Rest day based on religious grounds
Employer may schedule weekly rest `day for at least 2 days in a month
Leave
Paid leaves (Paid salary even if absent)
Excluded for SIL
1) Gov’t employees
2) Domestic helpers & those engaged in personal service
3) Managerial employees
4) Field personnel
5) Those already enjoying the benefit
6) Those enjoying vacation leave w/ pay of at least 5 days
7) Establishments w/ < 10 employees
Expanded Maternity Leave Law, RA 11210
105 days w/ option to extend for 30 more days without pay.
If solo parent, +15 days full pay
If miscarriage, 60 days with full pay
Qualifications for maternity leave
- SSS Member
- Employed at time of delivery
- Must have given required notice to SSS thru employer
- Paid at least 3 months contributions in the 12 months prior to her semester of childbirth
SS Law
60 days for normal, 78 for CD (only for first 4 deliveries)
Paternity Leave (RA 8187)
7 days but can be granted transfered leave from wife so 14 days total
Solo Parent Leave (RA 8972)
7 days for those who worked for at least 1 year
Solo parent due to:
1) Rape and other crimes against chastity
2) Widowed
3) spouse is detained (for at least 1 year)
4) Physical and/or mental incapacity of spouse
5) Legal separation
6) Declaration of nullity or annulment
7) B for at least 1 year
8) unmarried Parent
9) Any other person providing parental care
10) Any family member
Conditions to entitle solo parent to benefits
1) Rendered at least 1 year service
2) Provided notif within a reasonable period
3) Presented Solo Parent ID Card
For victims of VAWC (Anti-VAWC))
10 days of leave, extendible when necessary
Gynecological Leave (Magna Carta)
2 months following surgery caused by gynecological disorders. Must have rendered at least 6 months continuous employment
TESDA Act
Apprenticeship – involves theoretical instruction
Learners – Trainees in semi-skilled and other industrial occupations
Child work only allowed (RA 7610)
1) Under responsibility of parent or legal guardian
2) Public entertainment or information when essential
Wage
Remuneration/earnings, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece or commission basis, payable by an employer under a (written/unwritten) contract of employment for work done or to be done, or for service rendered or to be rendered
Supplements
Benefit/privilege given to employees that constitute an extra remuneration above and over his basic or ordinary earning or wage
Facilities
Things that are necessary for employee’s existence; can be deducted from wages if:
1) It must be provided and is customary in the industry to be provided
2) Are voluntarily accepted in writing by the employee
3) Must be charged at fair and reasonable value
When is an allowance part of wages
1) When it is customarily furnished (and regularly)
2) It isn’t board, lodging or other facilities
3) It has fair and reasonable value
Form of Payment (Art. 102)
Only legal tender.
Check or money order is allowed when:
1) It is customary
2) Necessary because of special circumstances or as stipulated by CBA
Bank checks, postal checks, money orders allowed when:
1) Customary
2) Stipulated in CBA
3) There’s abank within a 1km radius from the workplace
3) No pecuniary benefit to do it for the employer
4) Employees have reasonable time to withdraw wages during banking hours
5) Written consent from employees if no CBA
Time of payment (Art. 103)
- Once every 2 weeks with intervals not exceeding 16 days
Place of payment (Art. 104)
At or near the place of undertaking
Place of payment (Omnibus)
Allowed in places other than the place of undertaking when:
1) Deteriorates peace and order or by reason of actual or impending emergencies
2) Employer provides free transpo
3) Under analogous circumstances
4) No place of gaming
Bonus
Gratuity, act of liberality.
Art. 100
Prohibition against elimination or diminution of benefits
When are demotions valid?
1) notice to explain
2) Conference
3) Notice of demotion
Fair Day Pay
“Fair day’s wage for a fair day’s labor”
“Equal pay for equal work”
Persons who work substantially equal qualifications, skill effort and responsibility, under similar conditions, should be paid similar salaries
Wage deductions by employer (Art. 113)
Only allowed:
1) For insurance
2) Union dues
3) Authorized by law or regulations issued by DOLE
Rules re individual written check-off authorizations as a prereq to wage deductions (Radio Communications v. SOLE)
GEN: Need it to protect employee
EXC: When made with knowledge and consent of employees, when authorized by law
Standards for Minimum Wage Fixing (IRR, RA 6727 - Creation of the National Wages and Productivity Commission)
1) Demand for living wages
2) Wage adjustment vis a vis consumer price index
3) Cost of living, changes or increases
4) Needs of workers and their families
5) Need to induce industries to invest in the countryside
6) Improvements in standards of living
7) Prevailing wage levels
8) Fair return of capital invested and capacity to pay of employers
9) Effects on employment generation and family income
10) Equitable distribution of income and wealth along the imperatives of economic and social development
Wage distortions
Disappearance or virtual disappearance of pay differentials between lower and higher positions in an enterprise due to compliance with a wage order
Elements of wage distortion
1) Existing hierarchy of positions with corresponding salary rates
2) Significant change in salary rate of a lower pay class without a concomitant increase in the salary of a higher one
3) Elimination of the distinction between the two levels
4) Existence of the distortion in the same region of the country
13th month pay (PD 851)
1/12 of basic salary of an employee within a calendar year
Exceptions to employers required to pay 13th month
1) Distressed employers
2) Govt
3) Employers already paying
4) Household helpers and persons in personal service
5) Employers of those paid by commission, by task, by a specific work (exc: piece rate basis)
Service Charge
100% goes to employees (inc chefs, dishwashers, etc)
Working children (RA 9710)
Only allowed 15 and above
Homeworker (LC IRR)
1) Performs in or about his home
2) processing of goods or materials in whole or in part
3) which have been furnished by an employer
4) to be returned to the employer
Employers of homeworkers
1) Any person who for his account or benefit, directly or indirectly,
2) Delivers any goods to be processed in or about a home OR
3) Sells any goods, articles or materials to be processed in or about a home
When deductions in payment to homeworker can be made
1) Homeworker was clearly responsible for the loss or damage
2) Employee was given reasonable opportunity to show cause
3) Deduction is fair and reasonable; can’t exceed amount of loss
4) Deduction doesn’t exceed 20% of homeworker’s earnings
When is it ok to set age limitations? (Anti-age Discrimination in Employment Act)
1) Age is a reasonably necessary bonafide occupational qualification
2) Intent is to observe a bonafide seniority system
3) intent is to observe a bonafide retirement/voluntary early retirement plan
Retired employee is entitled to (Art. 302)
1) All retirement benefits provided herein OR
2) Termination pay = at least 1/2 month salary for every year of service (whatever is higher)
Retirement age
60 years old but not beyond 65, serving at least 5 years
1/2 month salary
15 days + 1/12th the 13th month pay + cash equivalent of max. 5 SILs
UNLESS parties provided for broader
Retirement for underground mining employee
50 years or more, max. 60 years
Requisites for private retirement plans
1) Served for at least 10 years
2) Min. 50 years of age
Retirement schemes
1) Compulsory and contributory
2) Agreement between the employer and employees
3) Voluntarily given by the employer
1/2 month salary upon retirement shall NOT include:
1) cost of living allowance
20 Profit sharing payments
3) other monetary benefits no considered part of or integrated into the regular salary of employees
Rules on Penalties
Must done in good faith and is reasonable; commensurate to the act committed.
Only allowed separation pay for dismissal for causes other than serious misconduct
Termination without just cause by employee
1) Must serve 1 month notice
2) Serious insult
3) Inhumane and unbearable treatment
4) Commission of a crime/offense by the employer against the employee/his immediate family
5) Analogous cases
Resignation
Voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service
Fraud
Insidious words or machinations and other party is induced to act without which they would not have agreed to
Requisites of intimidation
1) Threatened act is unjust or unlawful
2) Threat is real or serious
3) Produces a well-grounded fear
Due process requirements for authorized causes
1) 30 day notice to employee
2) 1 month prior written notice to DOLE
3) Payment of separation pay (if applicable)
Just cause vs. Authorized cause
Fault of employee, circumstances beyond control of the employee
When employment not terminated
1) Suspension of operations not exceeding 6 months
2) Fulfillment by the employee of a military or civic duty
Willful breach of trust
Employee need to hold a position of trust/confidence
Serious misconduct
Willful in character, serious enough to be of a grave and aggravated character
Grave misconduct
Clear intent to violate the law or a flagrant disregard of established rule
Misconduct – transgession of some established and definite rule of action
Gross – out of all measure beyond allowance, flagrant, shameful, inexcusable
Willful disobedience (elements)
1) Conduct was willful; characterized by a wrongful and perverse attitude
2) Order violated was: reasonable, lawful, made known to the employee, pertains to the duties he’s engaged in
Elements of abandonment
1) Failure to report for work without valid or justifiable reason
2) Clear intention to sever ER-EE relationship
Gross and habitual neglect to justify dismissal
1) Negligence is gross and habitual
2) Task wherein he was negligent was part of the employee’s duties
Valid dismissal
1) For valid cause
2) Employee was afforded due process
Breach of Trust must be willful
Willful – done intentionally, knowingly and purposely, without justifiable excuse
Loss of trust and confidence must rely on substantial grounds
Just/Authorized Cause and Due Process
1) YES Cause, YES Due process = Valid dismissal
2) YES Cause, NO Due process = Dismissal is upheld but employer will be made to pay damages
3) NO Cause, YES Due process = Reinstatement
4) NO Cause, NO Due process = Reinstatement
Totality doctrine
Totality of infractions during employment shall be considered in determining penalty to be imposed
Criteria for implementing Redundancy program
Fair and reasonable criteria such as but not limited to:
a) preferred status
b) efficiency
c) seniority
Types of retrenchment
1) Prevent losses
2) FInancial losses
Retrenchment
Reduction of personnel in order to cut down on costs of operation
Requisites for valid retrenchment
1) Necessity
2) notice
3) Payment of separation pay
For losses to be valid enough to reduce personnel
1) losses must be substantial
2) losses are actual or reasonably imminent
3) retrenchment is reasonable necessary and is likely to be effective in preventing the expected losses
4) alleged losses, or expected imminent losses, are proven by sufficient and convincing evidence
For closure to be valid
1) losses are substantial
2) increased through a period of time
3) condition is not likely to improve
Redundancy
Services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise
Requisites for valid cessation of operations
1) Notice
2) Cessation was bonafide in character
3) Separation pay
Floating status
Temporary closure; max. 6 months
