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MANAGEMENT RIGHTS
Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of the workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of work. ( San Miguel Brewery Sales vs. Ople, G.R. No. 53615, Feb. 08, 1989.) Every business enterprise endeavors to increase its profits . In the process, it may adopt or devise means designed towards that goal. Even as the law is solicitous of the welfare of the employees, it must also protect the right of an employer to exercise what are clearly management prerogatives. The freewill of management to conduct its own business affairs to achieve its purpose cannot be denied. (San Miguel Brewery vs. Ople, G.R. No. 53615, Feb. 1989.)
SECURITY OF TENURE
ARTICLE. 279. SECURITY OF TENURE - IN CASES OF REGULAR EMPLOYMENT, THE EMPLOYER SHALL NOT TERMINATE THE SERVICES OF AN EMPLOYEE EXCEPT FOR A JUST CAUSE OR WHEN AUTHORIZED BY THIS TITLE. AN EMPLOYEE WHO IS UNJUSTLY DISMISSED FROM WORK SHALL BE ENTITLED TO REINSTATEMENT WITHOUT LOSS OF SENIORITY RIGHTS AND OTHER PRIVILEGES AND TO HIS FULL BACKWAGES, INCLUSIVE OF ALLOWANCES, AND TO HIS OTHER BENEFITS OR THEIR MONETARY EQUIVALENT COMPUTED FROM THE TIME HIS COMPENSATION WAS WITHHELD FROM HIM UP TO THE TIME OF HIS ACTUAL REINSTATEMENT.
Prepared by:
Cm n Pa t e o p y r cic s a
1 8 Cn t uio 9 7 o s it t n CA B Lw as
Prepared by : Atty. Manolette F.E. Dinsay UP School of Labor & Industrial Relations
INFRACTION
ANSWER
ADMINISTRATIVE INVESTIGATION
INQUIRY
-Know the facts -What, When, Where, Who, why and how - Prepare a checklist -the checklist to the notice to explain
Prepared by: Atty. Manlolette F.E. Dinsay UP School of Labor & Industrial Relation
STEP 2. - WRITTEN EXPLANATION submitted by the employee detailing why he should not be penalized/disciplined;
STEP 3. - A HEARING or CONFERENCE during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and
STEP 4. - A WRITTEN NOTICE OF THE DISCIPLINARY ACTION (EITHER REPRIMAND, SUSPENSION, DEMOTION OR TERMINATION) served on the employee indicating that upon due consideration of the circumstance, grounds have been established to justify a penalty.
STEP 5. - SERVICE OF NOTICE to the employee IN PERSON. If employee cannot be located, service must be made to his LAST KNOWN ADDRESS through Registered Mail (Postal Service) with Return Card.
1st NOTICE
HEARING
2nd NOTICE
INFRACTION
ANSWER
ADMINISTRATIVE INVESTIGATION
EVALUATION and RECOMMENDATION OF MANAGER TO BE SENT TO HRMD/LEGAL FOR FINAL REVEIW AND PREPARATION OF DECISION
2) Is hearing dispensable ?
OFFENSE
DUE PROCESS
PROPER PENALTY
- Severity of the discipline must fit the severity of the offense or misbehavior - Must be consistently applied. - Discrimination and favoritism must be avoided. - Consider employees employment record
- Observe the 2 notice rule 1st NOTICE - Notice to Explain must specify the offense committed 2nd NOTICE - Notice of Decision must clearly state the reason therefor
Prepared by : Atty. Manolette F.E. Dinsay UP School of Labor & Industrial Relations
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 and willful breach by the employee of the trust reposed in him by his employer or dully 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 representative; and Other causes analogous to the foregoing.
Prepared by: Atty. Manolette F.E. Dinsay UP School of Labor & Industrial Realtions
3. NEGLECT OF DUTIES The employer cannot rightfully discharge an employee for trivial and unimportant acts of negligence. It is difficult, however to lay down any general rule as guide on the question whether, in a particular case, the act of the negligence is gross or not. Generally, gross negligence means an absence of that diligence that an ordinarily prudent man would use in his own affairs. (DOLE MANUAL, SEC.4343. 01(2)) 4. FRAUD OF WILLFUL BREACH OF TRUST AND CONFIDENCE To constitute a just cause for dismissal, the fraud must be committed against the employer or his representative and in connection with the employees' work. Furthermore, since fraud implies willfulness or wrongful intent, the innocent non-disclosure of facts by the employee to the employer will not constitute a just cause for dismissal. (DOLE MANUAL, SEC. 4343.01 (3)) 5. COMMISSION OF CRIME OR OFFENSE Another just cause for the termination of employment is the employee's commission of crime or offense against the person of his employer or against any immediate member of the employer's family. They are the spouse, ascendants, descendants, or legitimate, natural, or adopted brothers or sisters of the employer of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree. The conviction of an employee in a criminal case is not indispensable to warrant his dismissal and the fact that a criminal complaint has been dismissed conclusive upon the labor tribunal.
Prepared by: Atty. Manolette F.E. Dinsay UP School of Labor & Industrial Realtions
CONSEQUENCES OF TERMINATION
DECISION TO TERMINATE
Legal Requirements Art. III, Sec. 1, 1987 Constitution Art. XIII, Sec. 3, 1987 Constitution Labor Code of the Phils. P.D. 442
GENERAL RULE
No Separation Pay (IR, Book VI, Rule 1, Sec. 7) EXCEPTIONS:
- For Authorized Causes - Company Policy or CBA - Compassion (Based on Equity
available. e.g.
Check if witnesses and other persons involved in the investigation are present. Accomplish the attendance sheet. Investigator should state the purpose of the investigation. Explain why the person is being investigated. Advise the employee and witnesses to be truthful and candid in their answers. Remind them that lying during an investigation is an offense. Investigator should inform the employee concerned that the proceeding is being taped in order to preserve its integrity. Seek his consent. Read the names of the attendees including the witnesses. Ask employee to affirm and confirm his answer. Inquire whether or not amend or delete anything in the written answer or explanation. employee wishes to
Remind the employee concerned and the witnesses to verbalize their answers to the questions profounded by the investigator. Tell them their body language and gestures cannot be captured in the tape recorder or CD player.
Explain the nature of the offense and the reason why the person is being investigated. If necessary, discuss the facts and circumstances constituting the offense. This may be done by simply reading the salient portions of the show-cause memo. If the employee admits fault, ask why he did the offense. For the record, ask the employee if he is aware of the Code of Discipline or the SOPs of the company. If answer is yes, ask why he still committed the infraction. If he says no, show him proof that he was informed of the Code of Discipline and SOP that he has violated. WARNING : BE SURE OF YOUR DOCUMENTATION BEFORE YOU ASK THIS QUESTION. IT IS NOT SELDOM THAT EMPLOYEES DENY OR PRETEND TO HAVE NO RECOLLECTION WHEN UNDER INVESTIGATION. Lack of knowledge of a policy or SOP may be a ground to mitigate a penalty or even exculpate an employee. Your supervisors/managers will have a lot of explaining to do if it is true that employee is not aware of the policy/SOP in question. Do not make conclusive remarks which might be misconstrued as a pre-judgment of the case. This might be objected to by the respondent or his counsel. Do not mislead, intimidate or otherwise harass the employee or witnesses. It removes the essential element of voluntariness in their answers or admissions. Absent this essential element, the answers will have little, if not, zero probative value. Know whether or not the employee has committed the same or similar offense in the past. Look into past disciplinary actions where he may have been penalized already. A repeat will merit harsher penalty as it shows that the first penalty did not improve him. First offense is usually treated with lighter penalty since the disciplinary action should focus on correction or rehabilitation of the offender.
If there is an audit finding, show it to the employee and give him a chance to comment or clarify matters. Be sure the persons who drew up the audit findings are prepared to answer or defend it. If the employee disputes the findings, ask him why he thinks so or what aspects of the audit findings does he agree with. Take note and consider the comments or questions raised by the employee during the AI. These are important because the same issues are likely to be raised by the employee should he decide to pursue an illegal termination case. Do not argue with the employee or witnesses. Remember an investigation is a fact finding matter not a debate. If the employee is placed under preventive suspension, be sure to finish the AI within the period of suspension. HR must monitor this closely. Before the end of the investigation, ask the employee if there is anything else that he might want to say in the nature of a closing statement. Inform the employee that the case will be thoroughly evaluated and that he will be advised of the decision in due time. Thank the employee and the witnesses for their attendance and cooperation.
- Attendance Sheet - Writing Pad - Tape Recorder and tapes - Employees 201 File - All documents including logbooks, audit findings or objects that may assist or be helpful in the investigation
Prepared by : Atty. Manolette F.E. Dinsay U.P. School of Labor and Industrial Relations
ATTENDANCE SHEET
Administrative Investigation of Martin Nevada Accounting Clerk, XY & Z Corporation, North Reclamation Area October 2, 2001, 3:00 p.m.
Name ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________
Position ___________Signature _________ ___________ _________ ___________ _________ ___________ _________ ___________ _________ ___________ _________ ___________ _________ ___________ _________ ___________ _________
Prepared by : Atty. Manolette F.E. Dinsay U.P. School of Labor and Industrial Relations
s s
To From Subject
: :
Unauthorized strike
Please explain what happened and what you did on April 15, 1998. Thank you. For your strict compliance Mr. CALWYN SHERIDAN
cc : 201File
Problem No. 1 Myth, a staff writer, had been absent from her work for seven (7) days already. There is no sign that she is returning to work because an inquiry made by her superior indicated that she left for her hometown in Tagkawayan, Quezon Province. This is the third time that Myth had gone on absence without official leave (AWOL) within a period of two (2) months although her first and second unauthorized leaves were for 2 days and 3 days respectively. She wasnt issued a notice to explain on her previous AWOLs thus creating an impression among her co-employees that she is a sacred cow in the company. Except for her AWOL, Myth is an excellent employee whose skills are unmatched in the company and recognized as such in the industry. As a matter of fact, she received at least two juicy offers for employment from a competing network. She is known to have a no-nonsense attitude towards her work and is generally easy to get along with. Sensing something unusual, her superior inquired from her officemates as regards any liability or accountability that Myth may have incurred from them or from the company. Irene informed him that Myth borrowed from her P5,000 a day before she went missing. Ligaya also said that Myth has not returned the companys notebook computer despite her promise to do so. If you were the superior how would you handle this problem?
Prepare a notice to explain Conduct an administrative investigation/conference Prepare a decision
Problem No. 2
Ronnie has been employed with the network for twenty two years as a driver. On March 3, 2004, at around 11 oclock in the evening, after a location shooting in Indang, Cavite, he met an accident which badly damaged the company vehicle including some camera and equipment inside. Luckily he was unscathed except for minor bruises in the forehead due to the smashed windshield. His 2 passengers had more serious injuries which were not life-threatening. Total cost of damage and injury was estimated at P 1.5 million. During an inquiry conducted by his superior, Alexander, it was established that Ronnie was driving with an expired license. He smelled of liquor at the time of the accident which circumstance was reflected in the incident report filed by the traffic policemen. While he admitted that his license was expired, he vehemently denied that he was drunk or under the influence of liquor at the time of the accident. His passengers alleged that at the time of the accident, Ronnie was driving between 90 to 100 kilometers per hour or 20 kilometers faster than the allowable speed limit set by the company. They testified that they could not say with certainty whether or not Ronnie was under the influence of liquor at the time of the accident although they are sure that he was not drunk. This is Ronnies first major infraction of the companys policy which is why he pleads for mercy and a second chance to prove his worth. If you were Ronnies superior, how would you handle this problem? Prepare a notice to explain