TERMINATION OF EMPLOYMENT BY EMPLOYER

Question 1

What are the two causes to terminate employment by employer?

Answer 1

Just and Authorized Causes.

Question 2

What are Just Causes?

Answer 2

Just Causes are causes directly attributable to the fault or negligence of the employee.

Question 3

What are kinds of just causes?

Answer 3

1. Serious Misconduct
2. Insubordination or Willful Disobedience of the lawful order of the employer
3. Gross and Habitual Neglect of Duty
4. Fraud
5. Abandonment of Employment
6. Commission of Crime
7. Other Analogous Cases

Question 4

Define Serious Misconduct

Answer 4

It is definned as improper or wrongful conduct. It is a transgression of some established and definite rules of action. Act of forbidden, a dereliction of duty, willful character, and and implies wrongful intent and not just mere error in judgement

Question 5

What are the requisites for Misconduct?

Answer 5

1. The employee’s misconduct must be serious
2. The misconduct must be related to the employee’s duties
3. The misconduct renders him unfit to continue working for the employer
4. The act or conduct must have been performed with wrongful intent

Question 6

What is the doctrine of totality of infractions?

Answer 6

The totality of infractions or the number of violations committed during the period of employment shall be consideredin determing the penalty to be imposed upon an erring employee

Question 7

Definition of Insubordination

Answer 7

it is the refusal to obey some order, which a superior is entitled to give and have obeyed. It is the willful or intentional disregard of the lawful and reasonable instructions of the employer

Question 8

What are the requisites for insubordination?

Answer 8

1. there must be disobedience or insubordination
2. the disobedience or insubordination must be willful or intentional characterized by a wrongful and perverse attitude
3. The order violated must be reasonable, lawful, and made know to the employee
4. The order must pertain to the duties which he has been engaged to discharge

Question 9

Who are the two kinds of employees that are specifically terminated by the employer in cases where there is willful breach of trust?

Answer 9

Managerial employees and fiduciary employees

Question 10

who are managerial employees?

Answer 10

they are those who have the right to hire and fire employees, exercises management prerogative, and not just owner but also who has the same interests as the owner

Question 11

who are fiduciary employees?

Answer 11

they are those given properties or monies by the employer because of the nature/characteristics of their employment

Question 12

When can you say that an order is lawful?

Answer 12

If it is in accordance to the Philippine laws or policies and objectives of the company, then that can be a lawful and reasonable order that the employer can make to an employee

Question 13

Differentiate Gross and Habitual Neglect

Answer 13

Gross Neglect refers to the absence of that diligence that an ordinary prudent man would use in his/her own affairs. Connotes want of care in the performance of one’s duties while Habitual Neglect refers to the repeated failure to perform one’s duties over a period of time, depending upon the circumstances

Question 14

what are the requisites of gross/habitual neglect of duty to be a valid ground?

Answer 14

1. there must be negligence which is gross and/or habitual
2. it must be work related as would make him unfit to work

Question 15

Define Abandonment

Answer 15

a clear and deliberate intent to discontinue one’s employment without any intention of returning back

Question 16

What must concur for an abandonment to be a valid ground?

Answer 16

1. The employee must have failed to report for work or must have been absent without valid or justifiable reason
2. There must have been a clear intention on the part of the employee to sever the employer-employee relationship as manifested by some over acts

Question 17

If I have committed an infraction against my employer for a single time, can I be dismissed for gross and habitual neglect of duty?

Answer 17

No. Needs to be a repeated case for it to be habitual.

Question 18

Does one need to concurrently be grossly neglectful of duty and habitually neglectful of duty in order to be terminated?

Answer 18

One needs only be grossly neglectful or habitually neglectful to be terminated (St. Luke’s Medical Center vs. Notario, G.R. No. 152166, 20 October 2010)

Question 19

Definition of Fraud

Answer 19

Refers to any act, omission, or concealment which involves a breach of legal duty, trust or confidence justly reposed, and is injurious to another.

Question 20

Requisites for fraud?

Answer 20

1. there must be fraud, intentional deception and used dishonest methods for personal gain or damage to the employer
2. it must be in connection with the employees’ work that renders him unfit to work

Question 21

What is the difference between fraud and willful breach of trust?

Answer 21

Fraud implies bad faith of employees in performing their job. There is no trust or confidence reposed by the employer.

Question 22

definition of Willful breach of trust and confidence

Answer 22

refers to a situation where an employee intentionally violates the trust placed in them by their employer, which can be considered a just cause for termination, particularly applicable to employees holding positions of trust and confidence; essentially, it means an employee deliberately acted in a way that undermines the employer’s faith in their reliability and honesty, justifying dismissal.

Question 23

What must be present to be a valid ground of termination for willful breach of trust and confidence?

Answer 23

1. There must be an act, omission, or concealment
2. The act, omission, or concealment involves a breach of legal duty, trust, or confidence justly reposed
3. It must be committed against the employer or his/her representative
4. It must be in connection with the employees work

Question 24

Definiton of Commission of Crime

Answer 24

Refers to an offense by the employee against the person of his employer or ay immediate member of his family or his duly authorized representatives

Question 25

Requisites for commission of crime

Answer 25

1. There must be an act or omission punishable by law; and 2. The act or omission was committed by the employee against the person of employer, any immediate member of his/her family, or his/her duly authorized representative

Question 26

What if there is no statement with respect to commission of crimes in the employment contract? Will that employee be punished despite the absence of the ground of commission of crime in the contract?

Answer 26

It is a transgression of law. Even if it is not specifically provided for in the employment contract/company policies/etc., Anything that is against the criminal law is already stated or mandated by the labor code is being implemented

Question 27

If, for one instance, an employee is absent from work without the consent of the employer, will that be considered abandonment?

Answer 27

Only if they have explicitly manifested beforehand their intention to sever the employer-employee relationship for good; otherwise, they could have just been absent for a day.

Question 28

what are analogous cases?

Answer 28

its a catch-all provision that follows a criteria that failure to do so can constitute illegal dismissal.

Question 29

who has the burden of proof?

Answer 29

The employer has the burden of proof through substantial evidence that the dismissal made against the employee was legal. Failure to do so means the dismissal was illegal. However, it is the burden of the employee to set the facts as to why he was dismissed. Employees cannot merely take any dismissal to court and await the employee to prove its legality. They must provide facts pertaining to the dismissal.

Question 30

What is an analogous cases requisite for it to be valid?

Answer 30

1.there must be act or omission similar to those specified just causes; 2. the act or omission must be voluntary and/or willful on the part of the employees; and, 3. no act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies. (Section 5.2[g], Rule I-A, DOLE D.O. 147-15)

Question 31

What are Authorized Causes?

Answer 31

these are causes due to factors attributable to the employer. These are causes brought by the necessity and exigencies of business, changing economic conditions and illness of the employee.

Question 32

What are the authorized causes?

Answer 32

1. Installation of Labor-Saving Devices/Automation 2. Redundancy 3. Retrenchment 4. Closure or Cessation of Business Operations 5. Disease incurable in 6 months

Question 33

What is the definition of "Installation of Labor-Saving Devices/Automation"?

Answer 33

Installation of labor-saving devices / automation is the reduction of the number of workers in any workplace made necessary by the introduction of labor-saving machinery or devices.

Question 34

What are the requisites for "Installation of Labor-Saving Devices/Automation" to be a valid ground for termination?

Answer 34

1. There must be introduction of machinery, equipment, or other devices; 2. The introduction must be done in good faith; 3. The purpose for such introduction must be valid such as to save on cost, enhance efficiency and other justifiable economic reasons; 4. There is no other option available to the employer than the introduction of machinery, equipment, or device and that the consequent termination of employment of those affected thereby; and 5. There must be fair and reasonable criteria in selecting employees to be terminated. - Employment Status - Efficiency - Seniority Rights

Question 35

"Last-In, First-Out" Rule

Question 36

What is the definition of "Good Faith"?

Answer 36

Good faith means that it is not used to circumvent the rights of the employee as per our labor laws. Good faith is the absence of any kind of malice or any design to defraud the employee.

Question 37

What is the definition of "Redundancy"?

Answer 37

Redundancy is the condition where the services of an employee are in excess of what is reasonably demanded by the actual requirements of enterprise or superfluous.

Question 38

What is the definition of "Closure or Cessation of Business Operations"?

Answer 38

Closure or Cessation of Business Operations refers to the complete or partial cessation of the operations and/or shut-down of the establishment of the employer.

Question 39

What are the requisites of "Closing or Cessation of Operations" to be a valid ground for termination?

Answer 39

1. There must be a decision to close or cease operation of the enterprise by the management; 2. The decision was made in good faith; 3. There is no other option available to the employer except to close or cease operations.

Question 40

What is the difference between "Asset Sale" and "Stock Sale"?

Answer 40

In Asset Sale, the Corporation sells all or substantially all of its assets to another entity. The effect is that the employees in that corporation can be dismissed, subject to payment of separation pay and the buyer is not bound to absorbed the dismissed employees. In a Stock Sale, the stockholder is selling a controlling stock to another. A change in the controlling stockholder does not change the employment continuity of the employees. The effect is that only controlling interest/stocks change ownership, not the ownership of the corporation itself.

Question 41

What are the two types of corporations?

Answer 41

1. Nonstock Corporations 2. Stock Corporation

Question 42

What are the two types of closure of business?

Answer 42

- Not due to serious losses. - Due to serious losses.

Question 43

What are the requisites of "Retrenchment" to be a valid ground for termination?

Answer 43

1. The retrenchment must be reasonably necessary and likely to prevent business losses; 2. The losses, if already incurred, are not merely de minimis, but substantial, serious, and actual and real, or if only expected, are reasonably imminent; 3. The expected or actual losses must be proved by sufficient and convincing evidence; 4. The retrenchment must be in good faith for the advancement of its interest and not to defeat or circumvent the employees right to security of tenure; 5. There must be fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, efficiency, seniority, physical fitness, age, and financial hardship for certain workers.

Question 44

What are the two kinds of losses justifying retrenchment?

Answer 44

1. Incurred Losses: which are substantial, serious, and actual. 2. Expected Losses: which are reasonably imminent.

Question 45

What are the requisites of "Disease" to be a valid ground for termination?

Answer 45

Disease incurable in 6 months refers to an employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or prejudicial to his health as well as to the health of his co employees.

Question 46

What are the requisites for "disease" to be a valid ground for termination?

Answer 46

1. The employee must be suffering from any disease; 2. The continued employment of the employee is prohibited by law or prejudicial to his/her health as well as to the health of his/her co-employees; 3. There must be certification by a competent public health authority that the disease is incurable within a period of six months even with proper medical treatment. - A government doctor that specializes in that field. - Not accredited to the company.

Question 47

What is Garden Leave?

Answer 47

Garden Leave is the practice of the employer directing an employee not to attend work during the period of notice or resignation or termination of the employment. Garden Leave can be a company policy, not required. The moment you are given the notice of dismissal, it does not take effect immediately, often it starts in 30 days.