MANAGING WITHIN THE LAW

Module 1: Effective Disciplinary

Action

TOPICS TO BE DISCUSSED

CONCEPT OF EMPLOYMENT

DISCIPLINARY ACTION

Definition
What does the Labor Code say?

THE CONCEPT OF CONSTRUCTIVE DISMISSAL

Definition
Constitutional Mandate
Type of Due Process

UNDERSTANDING SECURITY OF TENURE

Definition
Purpose
Objectives

DUE PROCESS

What is an employee?
Who are those considered employees under the law?
What are their rights?

Instances of Constructive Dismissal

EFFECTS OF TERMINATION

Just Cause Matrix

Authorized Cause Matrix
Disciplinary Action Process

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WHAT IS AN EMPLOYEE?
An individual who works. . .
part-time
or full-time
under a contract of employment whether
oral

written

express or implied

has recognized rights and duties under the law

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An employee who
is engaged to
perform an activity
not
usually
necessary
or
desirable to the
course of business
of the employer or
merely incidental
to the business
and is hired under
the terms of casual
employment and
for
a
definite
period only.

PROBATIONARY EMPLOYEE

Where the work or

services to be
performed is
seasonal in nature
and the
employment is for
the duration of the
season in the
Philippines.

CASUAL EMPLOYEE

Where
the
employment has
been fixed for a
specific project or
undertaking, the
completion
or
termination
of
which has been
determined at the
time
of
the
engagement of the
employee in the
Philippines

SEASONAL EMPLOYEE

PROJECT EMPLOYEE

WHO ARE THOSE EMPLOYEES UNDER THE LAW?

A
probationary
employee is one
who, for a given
period of time, is
being
observed
and evaluated to
determine
whether or not he
is qualified for
permanent
employment

WHAT ARE THEIR RIGHTS?

SECURITY OF
TENURE
MINIMUM WAGE
AND BENEFITS
VALID
TERMINATION

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WHAT IS A DISCIPLINARY ACTION?

Disciplinary action is a process for dealing
with job-related behavior that does not
meet
expected
and
communicated
performance standards.

The primary purpose for discipline is to assist the employee to understand that a
performance problem or opportunity for improvement exists. The process features
efforts to provide feedback to the employee so he or she can correct the problem.
The goal of discipline is to improve employee performance.
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OBJECTIVES OF DISCIPLINARY ACTION

To enforce rules and regulations.

To ensure the smooth running of the organization.
To correct unacceptable behavior
To increase working efficiency.
To maintain industrial peace.
To improve working relations and tolerance.
To develop a working culture which improves
performance

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WHAT IS DUE PROCESS?

Due process of law simply means giving an
employee the opportunity to be heard before
judgment is rendered.
Due process of law is a law which hears before
it condemns, which proceeds upon inquiry and
renders judgment only after trial. (G.R. No. 80587 February
8, 1989 WENPHIL CORPORATION vs. NATIONAL LABOR RELATIONS COMMISSION AND
ROBERTO MALLARE)

CONSTITUTIONAL MANDATE

AND THUS. . . .

Section 1. No person shall be deprived

of life, liberty, or property without due
process of law, nor shall any person be
denied the equal protection of the
laws. (1987 PHILIPPINE CONSTITUTION, ARTICLE III BILL OF RIGHTS)

Labor laws and procedures are tilted in

favor of the worker under the social
justice principle that those who have
less in life should have more in law. For
this reason, employers must act with
caution in hiring, supervision, discipline
and firing of workers.

BECAUSE THE JOB OF A WORKER IS

CONSIDERED A PROPERTY!!!
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TYPE OF DUE PROCESS

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PROCEDURAL DUE PROCESS

Requires that an erring employee,
can only be dismissed after he has
given a reasonable opportunity to
be heard.
Reasonable opportunity" under the
Omnibus Rules means every kind of
assistance that management must
accord to the employees to enable
them to prepare adequately for their
defense.

Written
Notice
(NTE)

Hearing

Notice of
Termination

This should be construed as a period

of at least five calendar days from
receipt of the notice . (KING OF KINGS
TRANSPORT INC. VS. MAMAC)

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UNDERSTANDING SECURITY OF TENURE

WHAT IS SECURITY OF TENURE?
Legal protection afforded to employees
against summary or arbitrary dismissal by
the employer without just cause.

UNDER THE LABOR CODE. . . .

Labor Code of the Philippines, as
amended, specifically, Article 279 of the
said Code, the security of tenure has
been construed to mean as that the
employer shall not terminate the
services of an employee except for a
just cause or when authorized by the
Code.
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BASIS FOR DISMISSAL (SUBSTANTIVE DUE PROCESS)

Mandates that an employee can only be dismissed based on just and authorized causes

JUST CAUSES (ARTICLE 282, LABOR CODE)

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

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SUBSTANTIVE DUE PROCESS

ABANDONMENT
GROSS INEFFICIENCY
EXAMPLES OF
ANALOGOUS
CIRCUMSTANCES

DISLOYALTY/CONFLICT OF
INTEREST
DISHONESTY

REMINDER!!! An employee who is terminated from employment for a just cause

Is not entitled to payment of separation benefits.
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SUBSTANTIVE DUE PROCESS

AUTHORIZED CAUSES
As maybe broadly defined, authorized causes for dismissal of employee refer
to those lawful grounds for termination which in general do not arise from
fault or negligence of the employee. Authorized causes are distinguished
from just causes under Article 282 in that the latter are always based on acts
attributable to the employees own fault or negligence.

Installation of
Labor-Saving
Devices

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Redundancy

Retrenchment
to prevent
losses

Closure or
cessation of
operations

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THE CONCEPT OF CONSTRUCTIVE DISMISSAL

WHAT IS CONSTRUCTIVE DISMISSAL?
Constructive dismissal is an
employers act amounting to
dismissal but made to appear
as if it were not a dismissal
in disguise. In most cases of
constructive dismissal, the
employee is allowed to
continue to work, but is
simply
reassigned,
or
demoted,
or
his
pay
diminished without a valid
reason to do so.
Constructive dismissal does not always involve forthright dismissal or diminution in rank,
compensation, benefit and privileges. There may be constructive dismissal if an act of clear
discrimination, insensibility or disdain by an employer becomes so unbearable on the part or the
employee that it could foreclose any choice by him except to forego his continued employment. (See
Hyatt Taxi Services case, G.R. No. 143204, June 26, 2001.)
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INSTANCES OF CONSTRUCTIVE DISMISSAL

Diminution of pay is
prejudicial to the
employee and amounts
to constructive dismissal

Where the transfer

involves demotion of
rank or a diminution of
salary and other benefits

Ordering the employee to

take a leave and transfer by
reason of company financial
losses, and upon the
employee's return to work,
he was not allowed to enter
the company premises
Sabotage of employee's work
product either directly or
indirectly with repeated
interruption, confusing or
inaccurate direction, or
uncommunicated deadline
changes

Putting managers into

excessively difficult work
situations without
supporting their decisions.

Failing to pay wages due

Forced resignation

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EFFECTS OF TERMINATION

WITH DUE
PROCESS

WITH JUST
CAUSE
LEGAL
DISMISSAL

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WITHOUT
DUE
PROCESS

WITH JUST
CAUSE
LEGAL
DISMISSAL

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EFFECTS OF TERMINATION

WITHOUT
JUST
CAUSE

WITH DUE
PROCESS
ILLEGAL
DISMISSAL

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WITHOUT
DUE
PROCESS

WITHOUT
JUST
CAUSE
PERFECT
ILLEGAL
DISMISSAL

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EFFECTS OF TERMINATION

WITH
AUTHORIZED
CAUSE

WITH DUE
PROCESS

LEGAL
DISMISSAL

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WITH
AUTHORIZED
CAUSE

WITHOUT
DUE PROCESS

LEGAL
DISMISSAL

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EFFECTS OF TERMINATION

WITHOUT
AUTHORIZED
CAUSE

WITH DUE
PROCESS

ILLEGAL
DISMISSAL

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WITHOUT
AUTHORIZED
CAUSE

WITHOUT
DUE PROCESS
PERFECT
ILLEGAL
DISMISSAL

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IMMEDIATE SUPERVISOR

Prepares Incident Report

and NTE, issues the
same to the employee

EMPLOYEE

Provides Written
Explanation to HR within
five (5) calendar days

DISCIPLINARY DUE PROCESS FLOW

Accepts Written
Explanation and prepares
for the resolution of the
case

HUMAN RESOURCES DEPARTMENT

Validates Incident
Report

IR valid?

Determine
Gravity of
Offense

Yes

No

Finalizes decision

No

Serves Decision Notice

to the employee

Yes

Provides reason/s and

explanation as to why
the Incident Report was
deemed invalid

CASE DISMISSED
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Provides
Recommendations to HR
on the deliberation of
the case

Conducts Administrative
Hearing together with
Operations Supervisor

END

Files all documents

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References

http://www.blr.dole.gov.ph/
Azucena, C., The Labor Code with comments and cases. Vol 11, 6th Ed. 2007

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