Finding tools: http://jlp-law.com/blog/cases-on-the-national-identification-id-system/ http://www.sunstar.com.

ph/cebu/business/2012/06/23/almirante-probationary-employment-228264

PRIMARY SOURCES: http://www.coa.gov.ph/COA_Issuances/COA_Circulars/Circ2009/COA_C2009-006.pdf

RELATED CASES/ JURISPRUDENCE

Almirante: Probationary employment

Saturday, June 23, 2012

Dominador Almirante Labor case digest

RESPONDENT Bart Dalangin, Jr. was hired only in the previous month by petitioner Canadian Opportunities Unlimited, Inc. as immigration and legal manager. He was placed on probationary status for six months. In a memorandum dated Oct. 27, 2001, his employment was terminated and he was declared unfit and unqualified, for obstinacy and utter disregard of company policies; lack of concern for the companys interest; lack of enthusiasm toward work; and lack of interest in focusing on his relationship with his co-employees.

Check our new look and tell us what you think.

The Court of Appeals (CA) viewed Dalangins dismissal as arbitrary considering that the petitioner had a very little time to determine his fitness for the job. Does this view find merit?

Ruling: No.

The essence of a probationary period of employment fundamentally lies in the purpose or objective of both the employer and the employee during the period. While the employer observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent employment, the latter seeks to prove to the former that he has the qualifications to meet the reasonable standards for permanent employment.

xxx

As the Court explained in International Catholic Migration Commission, the word probationary, as used to describe the period of employment, implies the purpose of the term or period, but not its length. The fact that Dalangin was separated from the service after only about four weeks does not necessarily mean that his separation from the service is without basis.

Contrary to the CAs conclusions, we find substantial evidence indicating that the company was justified in terminating Dalangins employment, however brief it had been.

Time and again, we have emphasized that substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Dalangin overlooks the fact, wittingly or unwittingly, that he offered glimpses of his own behavior and actuations during his four-week stay with the company; he betrayed his negative attitude and regard for the company, his co-employees and his work.

xxx

We, therefore, disagree with the CA that the company could not have fully determined Dalangins performance barely one month into his employment. As we said in International Catholic Migration Commission, the probationary term or period denotes its purpose but not its length. To our mind, four weeks was enough for the company to assess Dalangins fitness for the job and he was found wanting. In separating Dalangin from the service before the situation got worse, we find the company not liable for illegal dismissal. (Canadian Opportunities Unlimited, Inc. vs. Bart Q. Dalangin, Jr., G.R. No. 172223, Feb. 6, 2012).

Ople vs. Torres (G.R. No. 127685, 23 July 1998, penned by Chief Justice Reynaldo Puno)

In 1996, President Fidel Ramos issued Administrative Order No. 308, entitled Adoption of a National Computerized Identification Reference System, the pertinent portions of which reads:

ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services on social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following:

SECTION 1. Establishment of a National Computerized Identification Reference System. A decentralized Identification Reference System among the key basic services and social security providers is hereby established. xxx SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems.

A.O. 308 involves a subject that is not appropriate to be covered by an administrative order and usurps the power of Congress to legislate

Congress is vested with the power to enact laws, while the President executes the laws. The Presidents administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. An administrative order refers to *a+cts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy.

A.O. No. 308 establishes for the first time a National Computerized Identification Reference System. It does not simply implement the Administrative Code of 1987. This administrative order redefines the parameters of some basic rights of the citizenry vis-a-vis the State, as well as the line that separates the administrative power of the President to make rules and the legislative power of Congress. It deals with a subject that should be covered by law.

A.O. violates the right to privacy

In striking down A.O. 308, the SC emphasized that the Court is not per se against the use of computers to accumulate, store, process, retrieve and transmit data to improve our bureaucracy. The SC also emphasized that the right to privacy does not bar all incursions into the right to individual privacy. This right merely requires that the law be narrowly focused and a compelling interest justify such intrusions. Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions.

The right to privacy is a constitutional right, granted recognition independently of its identification with liberty. It is recognized and enshrined in several provisions of our Constitution, specifically in Sections 1, 2, 3 (1), 6, 8 and 17 of the Bill of Rights. Zones of privacy are also recognized and protected in our laws, including certain provisions of the Civil Code and the Revised Penal Code, as well as in special laws (e.g., Anti-Wiretapping Law, the Secrecy of Bank Deposit Act and the Intellectual Property Code).

The right to privacy is a fundamental right guaranteed by the Constitution. Thefore, it is the burden of government to show that A.O. 308 is justified by some compelling state interest and that it is narrowly drawn. The government failed to discharge this burden.

A.O. 308 is predicated on two considerations: (1) the need to provide our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. While it is debatable whether these interests are compelling enough to warrant the issuance of A.O. 308, it is not arguable that the broadness, the vagueness, the overbreadth of A.O. 308, if implemented, will put our peoples right to privacy in clear and present danger.

The heart of A.O. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a common reference number to establish a linkage among concerned agencies through the use of Biometrics Technology and computer application designs. Biometry or biometrics is the science of the application of statistical methods to biological facts; a mathematical analysis of biological data. The methods or forms of biological encoding include finger-scanning and retinal scanning, as well as the method known as the artificial nose and the thermogram. A.O. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used.

Moreover, A.O. 308 does not state whether encoding of data is limited to biological information alone for identification purposes. The Solicitor Generals claim that the adoption of the Identification Reference System will contribute to the generation of population data for development planning is an admission that the PRN will not be used solely for identification but for the generation of other data with remote relation to the avowed purposes of A.O. 308. The computer linkage gives other government agencies access to the information, but there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system.

A.O. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. The lack of proper safeguards in this regard of A.O. 308 may interfere with the individuals liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for fishing expeditions by government authorities and evade the right against unreasonable searches and seizures. The

possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to prevent