Dismissal

Reinstatement Pending Appeal
Employee Discipline and Termination 2010-02-20

Immediate Execution of Reinstatement Order by Labor Arbiter.
The decision oI the Labor Arbiter reinstating a dismissed or separated employee, insoIar as the
reinstatement aspect is concerned, is immediately executory, even pending appeal. It means that
the employee should be reinstated immediately, and not be made to wait until the outcome oI the
appeal. The basis Ior this is Iound in paragraph 3 oI Article 223, oI the Labor Code oI the
Philippines, as Iollows:
x x x
'In any event, the decision oI the Labor Arbiter reinstating a dismissed or separated employee,
insoIar as the reinstatement aspect is concerned, shall immediately be executory, even pending
appeal. The employee shall either be admitted back to work under the same terms and conditions
prevailing prior to his dismissal or separation or, at the option oI the employer, merely reinstated
in the payroll. The posting oI a bond by the employer shall not stay the execution Ior
reinstatement provided herein.
x x x
Policy of the Law.
In authorizing execution pending appeal oI the reinstatement aspect oI a decision oI the Labor
Arbiter reinstating a dismissed or separated employee, the law itselI has laid down a
compassionate policy which, once more, viviIies and enhances the provisions oI the 1987
Constitution on labor and the working man. (Aris |Phil.| Inc. vs. NLRC, G.R. No. 90501 August
5, 1991.)
These duties and responsibilities oI the State are imposed not so much to express sympathy Ior
the workingman as to IorceIully and meaningIully underscore labor as a primary social and
economic Iorce, which the Constitution also expressly aIIirms with equal intensity. Labor is an
indispensable partner Ior the nation`s progress and stability. (Ibid.)
uty to Implement Reinstatement is Ministerial.
The appeal made by the employer on the Iinding oI illegal dismissal will not, by itselI, stall the
execution oI the order oI reinstatement. In order to stall execution, the remedy oI the employer is
to apply Ior restraining order upon Iiling oI the appeal beIore the National Labor Relations
Commission.
Unless there is a restraining order issued, it is ministerial upon the Labor Arbiter to implement
the order oI reinstatement. (Roquero vs. PAL, 2003)
Effect of Refusal of Employer to Reinstate Employee.
The order oI reinstatement is immediately executory. The unjustiIied reIusal oI the employer to
reinstate a dismissed employee entitles him to payment oI his salaries eIIective Irom the time the
employer Iailed to reinstate him despite the issuance oI a writ oI execution.
Option of Payroll Reinstatement.
Instead oI physically reinstating the illegally dismissed employee to his Iormer position, the
employer has the option to merely reinstate him in the payroll (Article 223, Labor Code).
This is called payroll reinstatement. (Read Payroll Reinstatement.)
Effect of Reversal on Appeal.
Even iI the order oI reinstatement oI the Labor Arbiter is reversed on appeal, it is obligatory on
the part oI the employer to reinstate and pay the wages oI the dismissed employee during the
period oI appeal until reversal by the higher court.
On the other hand, iI the employee has been reinstated during the appeal period and such
reinstatement order is reversed with Iinality, the employee is not required to reimburse whatever
salary he received Ior he is entitled to such, more so iI he actually rendered services during the
period.
The #01:3/ octrine (Genuino case).
In case oI reversal oI the award oI reinstatement on appeal, the employee is not required to
reimburse the salary he received even iI he did not render services during the period. This has
been the consistent ruling in majority oI cases.
A divergent view is Iound in Genuino vs. NLRC, G.R. Nos. 142732-33, December 4, 2007,
where the Court held as Iollows:
'II the decision oI the labor arbiter is later reversed on appeal upon the Iinding that the ground
Ior dismissal is valid, then the employer has the right to require the dismissed employee on
payroll reinstatement to reIund the salaries s/he received while the case was pending appeal, or it
can be deducted Irom the accrued beneIits that the dismissed employee was entitled to receive
Irom his/her employer under existing laws, collective bargaining agreement provisions, and
company practices. However, iI the employee was reinstated to work during the pendency oI the
appeal, then the employee is entitled to the compensation received Ior actual services rendered
without need oI reIund.
Genuino doctrine, however, Iound no support in subsequent cases. In Garcia vs. PAL case, G.R.
No. 164856, January 20, 2009, the Court exposed the dearth oI Genuino doctrine and
downplayed it as a mere stray posture.
eed for Writ of Execution.
Given that the order oI reinstatement is immediately executory, will there still be a need Ior a
writ oI execution to implement the order oI reinstatement?
This question was answered in Pioneer Texturing vs. NLRC, 1997, where the Court held that the
award oI reinstatement is selI-executory, even pending appeal. There is no more need Ior a writ
oI execution. To require the application Ior the issuance oI a writ oI execution would deIeat the
immediate execution oI a reinstatement order as required by Article 223.
Note, however, that this view is not Iound in the Labor Code itselI. The code only provides that
reinstatement shall be immediately executory, but not self-executory (which obviously are two
diIIerent things).
The rationale Ior dispensing the need Ior writ oI execution was explicated by the Supreme Court
in Pioneer case (ibid.), as Iollows:
'|...| The provision oI Article 223 is clear that an award Ior reinstatement shall be immediately
executory even pending appeal and the posting oI a bond by the employer shall not stay the
execution Ior reinstatement. The legislative content is quite obvious, i.e., to make an award oI
reinstatement immediately enIorceable, even pending appeal. To require the application Ior and
issuance oI a writ oI execution as prerequisites Ior the execution oI a reinstatement award would
certainly betray and run counter to the very object and intent oI Article 223, i.e., the immediate
execution oI a reinstatement order. The reason is simple. An application Ior a writ oI execution
and its issuance could be delayed Ior numerous reasons. A mere continuance or postponement oI
a scheduled hearing, Ior instance, or an inaction on the part oI the Labor Arbiter or the NLRC
could easily delay the issuance oI the writ thereby setting at naught the strict mandate and noble
purpose envisioned by Article 223. In other words, iI the requirements oI Article 224 were to
govern, as we so declared in Maranaw, then the executory nature oI a reinstatement order or
award contemplated by Article 223 will be unduly circumscribed and rendered ineIIectual|...|
Last Edited. Sunday, November 28, 2010
Reinstatement Pending Appeal
Employee Discipline and Termination Add your comment
O Need Ior Writ oI Execution
O Policy oI the Law
O Duty to Implement Reinstatement is Ministerial
O EIIect oI ReIusal oI Employer to Reinstate Employee
O Option oI Payroll Reinstatement
O EIIect oI Reversal on Appeal
O The ReIund Doctrine (Genuino case)
O Immediate Execution oI Reinstatement Order by Labor Arbiter
Continue Reading...
payroll reinstatement, reinstatement, reinstatement pending appeal
Feb
16
Reliefs of Illegally ismissed Employees
Employee Discipline and Termination 1 comment
O Right to Reinstatement
O Reinstatement Meaning
O Remedy when Reinstatement is no Longer Possible
O Doctrine oI 'Strained Relations Concept
O Right to Backwages
O Backwages Meaning
O EIIect oI Failure to Claim Backwages
O Computation oI Backwages
O Methods oI Computing Backwages
O Illegal Dismissal Without Backwages
O Separation Pay
O Amount oI Separation Pay: Formula
O Cases
Continue Reading...
attorney's Iees, backwages, doctrine oI strained relations, illegal dismissal, reinstatement,
separation pay
Feb
06
Termination Process (1ust Causes)
Employee Discipline and Termination 52 comments
O Procedural Due Process
O Service oI Notices
O Opportunity to Respond
O Requirements Ior First Notice (NTE)
O EIIect oI ReIusal oI Employee to Participate in Investigation
O EIIects or Consequences oI Termination
O Cases
Continue Reading...
abandonment oI work, breach oI trust, dishonesty, disobedience, gross negligence, grounds Ior
dismissal, just causes, loss oI conIidence, neglect oI duty, serious misconduct, Termination oI
Employment
Feb
05
Termination Process (Authorized Causes)
O Requirements oI Procedural Due Processs
O Criteria in Selection oI Employee to be Dismissed
O Payment oI Separation Pay
O EIIects oI Termination
Continue Reading...
authorized causes, closure oI business, downsizing, grounds Ior dismissal, installation oI labor-
saving devices, redundancy, retrenchment, retrenchment to prevent losses, Termination oI
Employment
Feb
04
Loss of Confidence
O Fraud eaning
O Breach oI Trust eaning
O Elements oI Loss oI ConIidence
O Fraud or Breach must be in Connection to Employee`s Work
O Employee must Hold Position oI Trust and ConIidence
O Title not Conclusive Indicator oI Trust and ConIidence
O Breach oI Trust must be WillIul
Continue Reading...
breach oI trust, Iraud, grounds Ior dismissal, just causes, loss oI conIidence, Termination oI
Employment
Feb
04
Gross and Habitual eglect of uty
Gross Negligence Meaning. Gross negligence is a just cause Ior termination oI employment by
employer under Article 282 oI the Labor Code oI the Philippines. Gross negligence has been
deIined as the want or absence oI or Iailure to exercise slight care or diligence, or the entire
absence oI care. It evinces a thoughtless disregard |...|
Continue Reading...
absenteeism, gross negligence, grounds Ior dismissal, just causes, tardiness, Termination oI
Employment
Feb
02
isobedience as Ground for ismissal
Employee`s Duty oI Obedience The employees are bound to Iollow reasonable and lawIul orders
oI the employer which are in connection with their work. Failure to do so may be a ground Ior
dismissal or other disciplinary actions. Under Article 282 oI the Labor Code oI the Philippines,
willIul disobedience to lawIul orders by the |...|
Continue Reading...
disobedience, grounds Ior dismissal, just causes, Termination oI Employment

isobedience as Ground for ismissal
Lmployee ulsclpllne and 1ermlnaLlon 20100202
Employee`s uty of Obedience
The employees are bound to Iollow reasonable and lawIul orders oI the employer which are in
connection with their work. Failure to do so may be a ground Ior dismissal or other disciplinary
actions.
Under Article 282 oI the Labor Code oI the Philippines, willIul disobedience to lawIul orders by
the employee is one oI the just causes Ior termination oI employment by employer.
Requirements of Willful isobedience as a Ground for Termination
The Court has set the guidelines Ior the dismissal based on disobedience.
In Gold City Integrated Port Services, Inc. v. NLRC, G.R. No. 86000, 21 September 1990, the
Court explained that willIul disobedience oI the employer`s lawIul orders, as a just cause Ior
dismissal oI an employee, envisages the concurrence oI at least two requisites:
1 Lhe employee's assalled conducL musL have been wlllful or lnLenLlonal Lhe wlllfulness belng
characLerlzed by a wrongful and perverse aLLlLude and
2 Lhe order vlolaLed musL have been reasonable lawful made known Lo Lhe employee and musL
perLaln Lo Lhe duLles whlch he had been engaged Lo dlscharge
In Maebo v. NLRC, G.R. No. 107721, 10 January 1994, the court reiterated that in order that an
employer may terminate an employee on the ground oI willIul disobedience to the employer`s
orders, regulations or instructions, it must be established that the said orders, regulations or
instructions are:
1 reasonable and lawful
2 sufflclenLly known Lo Lhe employee and
3 ln connecLlon wlLh Lhe duLles whlch Lhe employee has been engaged Lo dlscharge (
$9hlllpplnes lnc vs C C8 no 111807 !une 14 1996)
Policy must be Strictly Adhered to
In addition to the above requirements, in Permex, Inc. vs. NLRC, G.R. No. 125031, January 24,
2000, the Court held that where a violation oI company policy or breach oI company rules and
regulations was Iound to have been tolerated by management, then the same could not serve as a
basis Ior termination. (iting Tide Water Associated Oil Co. vs. Victory Employees and
Laborers` Association, 85 Phil. 166 |1949|.)
In Conti vs. NLRC, G.R. No. 119253, April 10, 1997, it was ruled that the dismissal oI an
employee due to an alleged violation oI a company policy, where it was Iound that the violation
was acquiesced in by said employee`s immediate superiors and the policy violated had not
always been adhered to by the management, is an act not amounting to a breach oI trust.
ThereIore, it is not a justiIication Ior said employee`s dismissal.
amage to Employer is not Important
Damage to employer is not important in dismissal based on willIul disobedience. ($ee Nuez vs.
NLRC, inIra.)
isobedience eed not be Habitual
Habituality is not an element oI willIul disobedience. The law warrants the dismissal oI an
employee without making any distinction between a Iirst oIIender and a habitual delinquent
where the totality oI the evidence was suIIicient to warrant his dismissal. In protecting the rights
oI the laborer, the law authorizes neither oppression nor selI-destruction oI the employer. ($ee
Aparente vs. NLRC, G.R. No. 117652, April 27, 2000.)
Cases
1 1he formal challenge broughL by employee of Lhe reasonableness or Lhe moLlves of a company's
pollcy ls noL an excuse for Lhe employee noL Lo obey sald pollcy (C1L ulrecLorles Corp vs
anchez May 27 1991)
2 uamage Lo employer ls noL lmporLanL lLhough Lhere was no damage Lo Lhe employer Lhe
dlsmlssal of Lhe drlver for lnsubordlnaLlon was upheld 1he lack of resulLlng damage ls
unlmporLanL when Lhe hearL of Lhe charge ls Lhe crooked and anarchlc aLLlLude of Lhe employee
Lowards hls employer (nuez vs nL8C C8 no 107374 uecember 28 1994)
Last Edited. Monday, November 29, 2010
ffubsequenL courL and admlnlsLraLlve rullngs or changes Lo or repeal of laws rules and
regulaLlons may have rendered Lhe whole or parL of Lhls arLlcle lnaccuraLe or obsoleLe
Gross and Habitual eglect of uty
Gross egligence 0,33.
Gross negligence is a just cause Ior termination oI employment by employer under Article 282 oI
the Labor Code oI the Philippines.
Gross negligence has been deIined as the want or absence oI or Iailure to exercise slight care or
diligence, or the entire absence oI care. It evinces a thoughtless disregard oI consequences
without exerting any eIIort to avoid them.
egligence must be Habitual.
In order to constitute a just cause Ior the employee`s dismissal, the neglect oI duties must not
only be gross but also habitual. Habitual neglect implies repeated Iailure to perIorm one`s duties
Ior a period oI time, depending upon the circumstances.
A single isolated acts oI negligence do not constitute a just cause Ior the dismissal oI the
employee.
However, in a number oI cases, the SC upheld the validity oI dismissal on the ground oI gross
negligence even iI the act complained oI was not habitual. Thus, a bank employee was Iound
grossly negligent when she delivered newly approved credit cards to a person she had not even
seen beIore and she did not even ask Ior receipts, thereby enabling Iictitious persons to use these
cards, causing P740,000.00 loss to the bank. ($ee Citibank vs. Gatchalian, G.R. No. 111222,
January 18, 1995.)
Habitual Absenteeism and Tardiness.
Habitual absenteeism and tardiness constitute gross and habitual neglect oI duty. Repeated acts
oI absences without leave and Irequent tardiness reIlect indiIIerent attitude to and lack oI
motivation in his work. (Valiao vs. CA, G.R. No. 146621, July 30, 2004.)
Loss of Confidence
Loss oI conIidence arising Irom fraud or willful breach of trust by employee oI the trust reposed
in him by his employer or his duly authorized representative is a just cause Ior termination oI
employment under Article 282 oI the Labor Code oI the Philippines.
raud 0,33.
Fraud is any act, omission, or concealment which involves a breach oI legal duty, trust, or
conIidence justly reposed and is injurious to another.
reach of Trust 0,33.
Breach oI trust reIers to the violation by the employee oI the trust and conIidence reposed in him
by his employer or duly authorized representative.
Elements of Loss of Confidence.
To determine whether the termination oI employment based on loss oI conIidence is justiIied, the
Iollowing elements are generally considered:
1 WheLher Lhe fraud or breach of LrusL ls ln connecLlon Lo Lhe employee's work and
2 WheLher Lhe employee concerned ls holdlng a poslLlon of LrusL and confldence
raud or reach must be in Connection to Employee`s Work.
To constitute just cause, Iraud or breach oI trust must be committed in connection with the
employee`s work or related to the perIormance oI the employee`s Iunctions.
Employee must Hold Position of Trust and Confidence.
The basic premise Ior dismissal on the ground oI loss oI conIidence is that the employee
concerned holds a position oI trust and conIidence. It is the breach oI this trust that results in the
employer`s loss oI conIidence in the employee. ($ee Nat`l Sugar ReIineries Corp. vs. NLRC,
G.R. No. 122277 February 24, 1998.)
Thus, loss oI conIidence ideally applies only to cases involving employee occupying positions oI
trust and conIidence, e.g., managerial employees, and those situations where the employee is
routinely charged with the care and custody oI the employer`s money or property, e.g., cashiers,
auditors, property custodian, etc.
Title not Conclusive Indicator of Trust and Confidence.
However, the title or appellation oI the employee`s position is not a conclusive indicator as to
whether or not an employee holds a position oI trust and conIidence. The determination should
hinge on the authority actually possessed by employee.
reach of Trust must be Willful.
Ordinary breach will not suIIice. It must be willIul and without justiIiable excuse, there must be
basis thereIor, and it must be supported by substantial evidence and not merely by the whims or
caprice oI the employer. (See Falguera vs. Linsangan, G.R. No. 114848 December 14, 1995.)
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3 erlous MlsconducL
breach of LrusL fraud grounds for dlsmlssal [usL causes loss of confldence 1ermlnaLlon of LmploymenL

Termination Process (Authorized Causes)
Requirements of Procedural ue Processs.
For valid termination based on authorized causes such as installation oI labor-saving devices,
redundancy, retrenchment to prevent losses, and closure or cessation oI operation, the employer
must serve written notice to the individual employee concerned and to the appropriate Regional
OIIice oI DOLE at least 30 days beIore the eIIectivity oI the termination.
Also, the employer must observe the Iollowing requirements as part oI the process oI
termination:
1 Cood falLh ln Lhe LermlnaLlon of employee le Lhe lmplemenLaLlon of Lhe company program
resulLlng Lo LermlnaLlon of employees musL be for a valld cause and noL merely a Lool Lo
clrcumvenL Lhe law on employee's securlLy of Lenure
2 1he employer musL adopL a falr and reasonable crlLerla ln Lhe selecLlon of employee Lo be
dlsmlssed and
3 1he employee musL be pald separaLlon pay noL less Lhan Lhe amounL flxed by law
Criteria in Selection of Employee to be ismissed.
In the selection oI the employee to be dismissed, the employer must adopt oI a Iair and
reasonable criteria which must be applied in good Iaith, such as:
1 Less preferred sLaLus of employee
2 Lfflclency raLlng and
3 enlorlLy
Payment of Separation Pay.
In termination oI employment due to authorized causes, the employer is required to give
separation pay to the employee concerned. The amount oI separation pay depends on the
speciIied cause oI termination.
1 ln case of LermlnaLlon due Lo Lhe lnsLallaLlon of laborsavlng devlces or redundancy aL leasL
one monLh pay or Lo aL leasL one monLh pay for every year of servlce whlchever ls hlgher
2 ln case of (a) reLrenchmenL Lo prevenL losses and (b) closures noL due Lo serlous flnanclal
reverses one monLh pay or aL leasL onehalf monLh pay for every year of servlce whlchever ls
hlgher
3 no separaLlon pay for closure due Lo serlous buslness losses
4 no separaLlon pay ls requlred when Lhe closure of buslness ls due Lo serlous buslness losses or
flnanclal reverses (norLh uavao Mlnlng 1996)
3 When closure of Lhe buslness esLabllshmenL ls forced upon Lhe employer and ulLlmaLely for Lhe
beneflL of Lhe employees 1he closure conLemplaLed under rLlcle 283 of Lhe Labor Code ls a
unllaLeral and volunLary acL on Lhe parL of Lhe employer Lo close Lhe buslness esLabllshmenL
(naLlonal lederaLlon of Labor vs nL8C 2000)
Effects of Termination.
1 lf Lhe LermlnaLlon ls for auLhorlzed cause and Lhe employee ls glven 30day prlor noLlce Lhe
dlsmlssal ls valld
2 lf Lhe LermlnaLlon ls for auLhorlzed cause buL Lhe employee was noL glven 30day prlor noLlce
Lhe dlsmlssal ls valld buL Lhe employer may be ordered Lo pay nomlnal damages Lo dlsmlssed
employee ln !aka lood 9rocesslng vs 9acoL 2003 Lhe amounL of nomlnal damages ls
93000000
3 lf Lhe dlsmlssal ls noL for a valld auLhorlzed cause Lhe dlsmlssal ls lllegal wheLher or noL Lhere ls
30day prlor noLlce ConsequenLly Lhe employee shall be enLlLled Lo relnsLaLemenL and
backwages and damages lf warranLed
Last Edited. Saturday, February 20, 2010
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2 Closure or CessaLlon of 8uslness CperaLlons
3 lnsLallaLlon of Laboravlng uevlces
4 8eLrenchmenL Lo 9revenL Losses
3 8edundancy
auLhorlzed causes closure of buslness downslzlng grounds for dlsmlssal lnsLallaLlon of laborsavlng
devlces redundancy reLrenchmenL reLrenchmenL Lo prevenL losses 1ermlnaLlon of LmploymenL

Termination Process (1ust Causes)
Procedural ue Process.
For termination oI employment based on just causes, procedural due process requires that the
employee be given the beneIit oI the so-called twin-notice and hearing, as Iollows:
1 llrsL noLlce noLlce Lo Lxplaln (n1L) or order Lo show cause wrlLLen noLlce served on Lhe
employee speclfylng Lhe ground or grounds for LermlnaLlon and glvlng Lo sald employee
reasonable opporLunlLy wlLhln whlch Lo explaln hls slde
2 earlng or formal lnvesLlgaLlon hearlng or conference durlng whlch Lhe employee concerned
wlLh Lhe asslsLance of counsel lf Lhe employee so deslres ls glven opporLunlLy Lo respond Lo Lhe
charge presenL hls evldence or rebuL Lhe evldence presenLed agalnsL hlm
3 econd noLlce noLlce of declslon wrlLLen noLlce of LermlnaLlon served on Lhe employee
lndlcaLlng LhaL upon due conslderaLlon of all Lhe clrcumsLances grounds have been esLabllshed
Lo [usLlfy hls LermlnaLlon (ee rL 277b and ec 2 8ule l 8ook vl l88)
Service of otices.
In case oI termination, the employee must be personally served with notices (notice to show
cause and notice oI termination). Ideally, this should be done by personally handing a copy oI the
notice to the employee concerned. However, iI this is not possible, the notices may be served on
the employee`s last known address either by ordinary or registered mail (Irom legal viewpoint,
registered mail is preIerred).
The mere posting oI the notice on the bulletin board is not suIIicient compliance. (Shoppers Gain
Supermart, 1996)
II the employee reIused to receive notice, the employer must serve the same by registered mail at
his last known address. (See Nueva Ecija Electric Coop case, 2005)
Opportunity to Respond.
The very purpose oI requiring the employer to observe proper termination process is to give the
employee ample opportunity to respond to the charges against him or to deIend himselI. What
the law require is ample opportunity.
Ample opportunity means every kind oI assistance that management must accord the employee
to enable him to prepare adequately Ior his deIense including legal representation.
Requirements for irst otice (TE).
The Iirst notice inIorming the employee oI the charges against him should set out clearly what he
is being held liable Ior. It should neither be pro-Iorma nor vague. This is consistent with the
requirement that the employee should be aIIorded ample opportunity to be heard and not mere
opportunity.
Moreover, the dismissal, iI necessary, must be based on the same grounds cited in the NTE. II
the dismissal is based on grounds other than those speciIied in the notice, he is deemed to have
been deprived oI due process. (Glaxo Wellcome vs. NEW-DFA, 2005.)
Effect of Refusal of Employee to Participate in Investigation.
By the reIusal oI employee to participate in the investigation, he is deemed to have waived his
right to deIend himselI. (Leonardo vs. NLRC, 2000.)
Effects or Consequences of Termination.
1 lf dlsmlssal ls for [usL cause and wlLh prlor noLlce and hearlng Lhe dlsmlssal ls f
2 lf Lhe dlsmlssal ls for [usL cause buL wlLhouL prlor noLlce and hearlng Lhe dlsmlssal ls f buL
Lhe employer may be requlred Lo pay nomlnal damages Lo Lhe dlsmlssed employee
3 lf Lhere ls no [usL cause for dlsmlssal wheLher or noL Lhere ls prlor noLlce and hearlng Lhe
dlsmlssal ls f 1he employee ls enLlLled Lo relnsLaLemenL backwages and damages
Cases
1 1he employee refused Lo parLlclpaLe ln Lhe lnvesLlgaLlon belng conducLed by Lhe personnel
managemenL 1he CourL ruled LhaL by refuslng Lo parLlclpaLe he cannoL clalm LhaL he was
denled due process (Leonardo vs nL8C 2000)
2 1he employmenL conLracL conLalns sLlpulaLlon LhaL Lhe employmenL may be LermlnaLed by
elLher parLy afLer one monLh noLlce" or one monLh salary ln lleu of noLlce" 1he sLlpulaLlon
was held Lo be lllegal 1he requlremenL of prlor noLlce and opporLunlLy Lo be heard cannoL be
subsLlLuLed by mere paymenL of salary (9n8 vs Cabansag 2003)
Last Edited. Sunday, November 28, 2010
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1 !usL Causes for 1ermlnaLlon of Lmployee
2 Loss of Confldence
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4 1ermlnaLlon 9rocess (uLhorlzed Causes)
3 ulsobedlence as Cround for ulsmlssal
abandonmenL of work breach of LrusL dlshonesLy dlsobedlence gross negllgence grounds for
dlsmlssal [usL causes loss of confldence neglecL of duLy serlous mlsconducL 1ermlnaLlon of
LmploymenL

Reliefs of Illegally ismissed Employees
In general, an illegally dismissed employee is entitled to one or more oI the Iollowing relieIs:
1 8elnsLaLemenL
2 9aymenL of 8ackwages
3 eparaLlon 9ay
4 9aymenL of uamages and
3 ward of LLorney's lees
Right to Reinstatement.
An employee who is unjustly dismissed Irom work is entitled to reinstatement without loss oI
seniority rights and other privileges. (Article 279, Labor Code.)
Reinstatement WSZZY.
Reinstatement is a relieI granted to an illegally dismissed employee which restores him to the
position Irom which he was removed, that is, to his status quo ante dismissal. Reinstatement
should be without loss oI seniority rights and other privileges.
Remeuy when Reinstatement is no Longei Possible.
As a necessary consequence oI the Iinding oI illegal dismissal, the illegally dismissed employee
becomes entitled to reinstatement as a matter or right. The employer must reinstate him to the
position he was holding prior to his dismissal. Ideally, this should be the case.
However, in some instances, although the dismissal oI the employee is determined to be illegal,
reinstatement may no longer possible Ior a number oI reasons. In such case, separation pay in
lieu oI reinstatement may be awarded.
Following are some oI the instances where payment oI separation pay is allowed in lieu oI
reinstatement:
1 When Lhe relaLlonshlp beLween Lhe employer and Lhe employee had become sLralned as Lo
preclude a harmonlous worklng relaLlonshlp
2 When relnsLaLemenL becomes a legal lmposslblllLy
3 When Lhe employee no longer wlsh Lo be relnsLaLed
4 When prudence and falr play so dlcLaLes and
3 When relnsLaLemenL ls noL pracLlcable due Lo loss of confldence
octiine of "Stiaineu Relations"[ZUW\`.
Under the doctrine oI strained relations, the payment oI separation pay has been considered an
acceptable alternative to reinstatement when the latter option is no longer desirable or viable. On
the one hand, such payment liberates the employee Irom what could be a highly oppressive work
environment. On the other, the payment releases the employer Irom the grossly unpalatable
obligation oI maintaining in its employ a worker it could no longer trust. (Coca-Cola Bottlers
Phils. vs. De Leon, G.R. No. 156893, June 21, 2005.)
Nevertheless, the principle oI strained relations should not be used so indiscriminately as to bar
the reinstatement oI illegally dismissed workers, especially when they themselves have not
indicated any aversion to returning to work, as in this case. It is only normal to expect a certain
degree oI antipathy and hostility to arise Irom a litigation between parties, but not in every
instance does such an atmosphere oI antagonism exist as to adversely aIIect the eIIiciency and
productivity oI the employee concerned. (Ibid.)
The doctrine oI strained relations may be invoked only against employees whose positions
demand trust and conIidence, or whose diIIerences with their employer are oI such nature or
degree as to preclude reinstatement.
In Maranaw Hotels vs. NLRC, G.R. No. 123880, February 23, 1999, the Court reIused to apply
the doctrine oI strained relations on the ground that the position oI a room boy is not such a
sensitive position that demands complete trust and conIidence.
Right to ackwages.
An employee who is unjustly dismissed Irom work shall be entitled to his Iull backwages,
inclusive oI allowances, and to his other beneIits or their monetary equivalent computed Irom the
time his compensation was withheld Irom him up to the time oI his actual reinstatement.
ackwages WSZZY.
Backwages is the restitution oI earnings unduly withheld Irom the employee because oI illegal
termination. It partakes the nature oI a penalty the employer has to pay Ior illegally dismissing an
employee.
omputation of ackwages.
Inclusive period. Full backwages is to be computed Irom the time compensation was withheld
Irom the employee up to the time oI his actual reinstatement.
Base figure. The based Iigure to be used in the computation shall include not just the basic
salary, but also regular allowances and other beneIits or their monetary equivalent, i.e.,
transportation, emergency living allowance, 13th-month pay, etc.
Wage rate. The computation oI backwages may be based either on the current wage rate or the
wage rate at the time oI the dismissal. II current wage rate is awarded, it must be expressly stated
in the decision. II not expressly stated (award is unqualiIied), the wage rate at the time oI the
dismissal should be used. (Paramount Vinyl vs. NLRC, G.R. No. 81200, October 17, 1990.)
ethous of omputing ackwages.
eduction of earnings elsewhere` rule. Under this rule, the award oI backwages to an
employee could be reduced by subtracting the wages actually earned by him Irom employment
during the period oI his separation, or the wages which he could have earned had he been
diligent enough to Iind a job. The employer would be allowed to adduce evidence on these
matters. This rule was abandoned in Mercury drug case primarily because the deduction oI
evidence was Iound to only delay execution process.
ercury rug` rule. To remedy the delay brought about by the Iirst rule, and to speed up
execution process, the Supreme Court in Mercury Drug case, 1974, adopted the policy oI
granting to employee backwages Ior a maximum period oI three years without qualiIication and
deduction.
ethod used under RA 6715. With the passage oI RA 6715, both the rules above were
abandoned. The rule now is that the employees are entitled to Iull backwages without deduction
or qualiIication.
llegal ismissal without ackwages.
As a general rule, an employee who is dismissed due to the unlawIul act oI the employer or to
the latter`s bad Iaith is entitled to backwages as a matter oI right, backwages being a direct and
necessary consequence oI Iinding oI illegal dismissal.
However, there are instances where despite illegal dismissal, the illegally dismissed employee is
not entitled to backwages. This happens in cases where good Iaith is evident on the part oI the
employer in dismissing the employee, i.e., there is just cause to dismiss employee, but the
dismissal is Iound by the court to be too harsh a penalty.
ffect of Failuie to laim ackwages.
The award oI backwages resulting Irom illegal dismissal oI employee is a substantive right.
Thus, it has been held that the employee does not IorIeit his right to claim backwages even iI he
Iailed to claim Ior the same in his complaint.
Separation Pay.
As stated above, separation pay is the relieI awarded to employee when reinstatement is no
longer Ieasible or practicable, or when reinstatement is no longer desirable or will not serve the
best interest oI the parties.
mount of Sepaiation Pay: [^aS.
The amount oI separation pay in lieu oI reinstatement is not Iixed by the Labor Code. But the
trend in recent cases is to compute the same using the Iormula one month pay, or one month
pay per year oI service. (This Iormula was used in the 2005 case P. J. Lhuillier vs. NLRC.)
In other older cases, the court used one halI month pay per year oI service.
Cases
1 eparaLlon pay and backwages are dlsLlncL and separaLe from each oLher Labor rblLer
cannoL order LhaL Lhe separaLlon pay be deducLed from Lhe backwages (olls vs nL8C C8 no
116173 CcLober 28 1996)
2 1he nL8C reverses Lhe declslon of Lhe Labor rblLer and ordered Lhe employees' relnsLaLemenL
buL falled Lo award backwages Cn appeal flled by Lhe employer Lhe CourL of ppeals (C)
awarded backwages alLhough Lhe employee dld noL appeal Lhe declslon 1he upreme CourL
ruled LhaL Lhe award made by Lhe C ls proper 8ackwages ls a mere consequence of flndlng of
lllegal dlsmlssal (L Mlchael's lnsLlLuLe vs anLos C8 no 143280 uecember 4 2001)
3 8ackwages was noL granLed Lo Lhe employee because Lhe employer was ln good falLh when lL
dlsmlssed Lhe employee who recelved 9700000 from an appllcanL for lllegal lnsLallaLlon of
power llne (Meralco vs nL8C C8 no 78763 !uly 121989)
Related posts
1 8usLamanLe vs nL8C 1996
1.2.Only a Iool would try to deprive working men and women oI the right to join the union oI
their choice. President wight Eisenhower

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Reinstatement Pending Appeal

Employee Discipline and Termination 2010-02-20

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