BoardRoom Discussions

Mama, I just killed a man, put a gun unto his head pulled the trigger and now his dead, mama, life has just began…

Aside from the Philippine debut of Spiderman 3, the world is also celebrating Labor Day. It’s just timely to release the 3rd installment on “how to lose your job” blog series.

Workers around the world enjoy certain rights as embodied in their labor code and their constitution. In the Philippines, we have labor standards and employees rights that capitalists and investors should respect and observe, to wit:

i) Employment Standards

(1) minimum age Art 139, PLC
(2) non discrimination Art 3, Art 135, PLC
(3) regularization Art 280-281, PLC
(4) subcontracting Art 106, PLC
(5) security of tenure Art 279, PLC
(6) night work for women Art 130, PLC
(7) forced labor Art 114, 116, PLC

ii) Workers right

(1) to self organize Art 3, PLC
(2) to strike Art 263-264, PLC
(3) to collective bargaining Art 253-A, PLC
(4) to arbitration Art 260, PLC

iii) Wages

(1) minimum wage Art 99, 120-127
(2) Overtime pay Art 87, PLC
(3) Premium pay on holidays and rest day Art 93-94, PLC
(4) night shift pay Art 86, PLC
(5) 13th month pay PD 851
(6) non diminution of pay Art 100, PLC

iv) Hours of work

(1) 8 hours Art 83, PLC
(2) meal periods Art 85, PLC
(3) weekly rest periods Art 91-92, PLC
(4) Paternity leave RA 8187

v) Health and Safety

(1) Paid maternity leave Art 133, PLC
(2) Medical and dental services Art 156-161 PLC
(3) Health and safety Art 162-165
(4) Sexual Harassment RA 7877
(5) Health Insurance (PhilHealth) RA 7875

vi) Social Security
(1) Employee Compensation Art 166, PLC
(2) Social Security RA 1161 or
(3) GSIS law RA 8291

But investors and capitalists also enjoy certain prerogatives and rights, this is to ensure an atmosphere that is conducive to productivity and profit .

These rights, however, are not absolute, and subject to certain process to protect both the interests of investors and the workers.

On my last post, we discussed about the series of little acts, that overtime, can lead to termination of employment. On this issue, we’ll discuss a single but grave and serious act that “may” lead also to separation.

Again. let me remind all readers that no disciplinary action can be imposed unless “due process of law” is observed. Furthermore, employers should expect that terminated employees will question the legality of the dismissal before the Department of Labor and Employment.

Lets go back to Art. 282 of the Phil. Labor Code

Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes:

• Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
• Gross and habitual neglect by the employee of his duties;
• Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
• 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 representatives; and
• Other causes analogous to the foregoing.

What are these acts that “may” lead to separation, immediate or otherwise?

• Serious Misconduct– all misconduct is wrong, but to be a ground for termination it should be willful and serious like sexual harassment, abuse of authority and alike.
• Gross Negligence– an act devoid of due diligence expected from an employee, resulting or that may result to loss or damage to life, property and environment. A good illustration would be the failure to follow safety procedures that may threaten public health and damage to property and environment.
• Fraud or dishonesty– this act must be committed against the employer or his representative and intentional in nature. To terminate an employee using this ground, it should be based on established facts and employer must not used this arbitrarily. Illustration: misrepresentation of transcript of records and diploma, forging of receipts for reimbursements, fraudulent overtime and attendance report.
• Commission of a crime or offense against the employer or duly authorized representative– please note that it can either be (1) a crime or offense and (2) committed against the employer, his family or (3) his duly authorized representative (Managers and other company officers). Conviction is not necessarily required, when, according to Atty. C. A. Azucena, when the act of misconduct or willful breach of trust are repeatedly committed by the employee.
• Analogous Causes– to be considered analogous to the just causes enumerated, according to Atty. C. A. Azucena, it “must be due to the voluntary and/or willful act or omission of the employee”.

Suggested reading: Everyone’s Labor Code by Azucena

aside: readers outside the Philippines, please check your local Labor Code or related laws of your land.

Disclaimer:

The opinions expressed herein does not constitute legal advise, if you are in trouble, you can do either of these actions, (1) discuss things and seek the help of your HR or Personnel Head, (2) shape up and (2) seek legal advise.