Outline on Post Employment, Book Six

Page 1 of 10

Outline on Post Employment BOOK SIX of the Labor Code TITLE I Termination of Employment ARTICLE 278.Coverage. — The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not.

ARTICLE 279.Security of Tenure. — In cases of regular employment , the employer shall not terminate the services of an employee 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 to his backwages computed from the time his compensation was withheld from him up to time of his actual reinstatement. (As amended by RA 6715)

ARTICLE 280.Regular and casual employment. — The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreements of the parties, an employment shall be deemed to be regular where the the emplo employee yee has has been been engag engaged ed to perfo perform rm activ activit itie iess whic which h are are usual usually ly necessary or desirable in the usual business or trade of the employer except 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 or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

ART ARTIC ICLE LE 281. 281. Prob Probat atio iona nary ry empl em ploy oyme ment nt.. — Prob Probat atio iona nary ry employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify qualify as a regular regular employee employee in accordance accordance with reasonable reasonable standards made known by the employer to the employee at the time of his engagement. An empl em ploy oyee ee who who is allo allowe wed d to work work afte afterr a proba probati tion onary ary perio period d shal shalll be considered a regular employee.

▲

CLASSES OF EMPLOYEES 1.

REGULAR - enga engage ged d to perfo perform rm activ activiti ities es which which are are usua usually lly necessary or desirable in the usual business or trade of the employer may be be te termin rmina ated on only for for ju just / au autho thorize rized d ca causes ses - Regular employment may be by reason of: 1) nature of work, 2) by years of service.

Outline on Post Employment BOOK SIX of the Labor Code

JS ALBARECE NOTES

Page 2 of 10

2.

PROBATIONARY General Rule: Must not exceed 6 mos. - Except: a) when covered covered by an apprenti apprenticesh ceship ip agreemen agreementt stipulatin stipulating g a longer longer period b) when when volun volunta tary ry agree agreed d by the parties parties (especia (especially lly when nature nature of work requires a longer period of training) c) when the the employe employerr gives the the employe employee e a second second chance chance to pass pass the standards set d) In cas case e of of scho school ol tea teache chers. rs. *May not be terminated except for: a) just just or autho authoriz rized ed cause causes s b) failin failing g to qualif qualify y as a regula regularr empl employe oyee e in accorda accordanc nce e with with reasonable standards made known by the employer to employee at the time of his engagement. - if allowe allowed d to work work after after the the proba probation tionary ary perio period, d, he shall shall be consid considered ered a REGULAR employee

3.

PROJECT - one one whos whose e empl employ oyme ment nt has been been fixe fixed d for for a spec specif ific ic proj projec ectt or undertaking the completion of which has been determined at the time of engagement of the employee. *May not be terminated except: a) Upon Upon compl completi etion on of the the proje project ct b) For just / authorized authorized causes causes when the project project is not not yet completed. completed. *becomes regular if: a. Job is usually usually necessary necessary or or desirable desirable in the the usual usual business business or trade trade AND b. There There is repeate repeated d rehiring rehiring for for the same same or or similar similar tasks. tasks.

4.

SEASONAL - one one whose whose work work or servi service ces s to be perfo perform rmed ed is seaso seasona nall in nature nature and and the employment is for the duration of the season.

5.

CASUAL - activ activity ity perfo performe rmed d is not usual usually ly neces necessar sary y or desirab desirable le in the usua usuall business or trade of the employer, not project and not seasonal EXCEP EXCEPT: T: if he has has rende rendered red at least least 1 year year of servi service, ce, wheth whether er such such service is continuous or broken = considered a REGULAR employee with with resp respec ectt to the the acti activi vity ty in whic which h he is empl employ oyed ed and and his his employment shall continue while such activity exists - May be termi termina nate ted d with with or witho without ut just just cau cause se

6.

FIXED TERM Allowed if: - perio period d is agreed agreed upon upon knowin knowingl gly y and volun volunta taril rily y by the parti parties es witho without ut force, duress, or improper pressure exerted on the employee - sati satisf sfac acto tori rily ly appe appear ars s that that emplo employe yerr and and empl employ oyee ee deal dealtt with with each each other on more or less equal terms with no moral dominance exercised by the employer on the employee - term term employ employme ment nt is not not resort resorted ed to defe defeat at the the rights rights of the the worke workers’ rs’ rights

* NOTE: There may be regular seasonal and regular project employees. Any employee

who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists


JS ALBARECE NOTES

Page 3 of 10

ART ARTIC ICLE LE 282.T 282.Ter ermi mina nati tion on by em empl ploy oyer er.. — An em empl ploy oyer er may may terminate an employment for any of the following just causes: (a) Serious misconduct misconduct or willful willful disobedienc disobediencee by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual habitual neglect neglect by the employee employee of his duties; (c) Fraud or willful willful breach by the employee employee of the the trust reposed reposed in him by his employer or duly authorized representative; (d) (d) Commi Commiss ssio ion n of a crime crime or offe offense nse by the the emplo employee yee agai against nst the person of his employer or any immediate member of his family or his duly authorized representative; and (e) Other causes causes analogous analogous to the foregoing. foregoing.

▲

JUST CAUSES FOR TERMINATION

1.

Serio Serious us misco miscondu nduct ct or willfu willfull disobe disobedie dience nce by the employ employee ee of the lawful orders of his employer or representative in connection with his work. work. Misconduct is an improper or wrong conduct. It is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies a wrongful intent, not a mere error in judgment. For For mis misco cond nduc uctt to be seri seriou ous s it it mus mustt be be of of suc such h gra grave ve and and agg aggra rava vate ted d character and not merely trivial or unimportant. Some Ex Examples of of Se Serious Mi Misconduct: a) uttering obscene, insulting or offensive words against superior b) challenging superior officers to a fight c) immorality d) Sexual harassments Dism Dismis issa sall not not com commens mensur urat ate e for for the the foll follow owin ing g mis misco cond nduc uct: t: a) fisticuffs which are plainly private and did not affect the company’s interest. b) Teacher falling in love and marrying a student Willful disobedience must be a willful AFFRONT to the employer’s authority, not a mere mere FAILURE to obey. The requisites are: a) The The emp emplo loye yee’ e’s s cond conduc uctt is is wil willf lful ul cha chara ract cter eriz ized ed by wron wrongf gful ul or perverse attitude, and, b) The The orde orderr viol violate ated d mus mustt be be law lawful ful,, work work relate related d and and made made known to the employee. NonNon-co comp mpli lian ance ce to an orde orderr to to tra trans nsfe ferr con const stit itut utes es will willfu full dis disob obed edie ienc nce. e. Except when the order is intended as a subterfuge to get rid of undesirable employee or to penalize an employee for his union activities or affected with mala fides.

2.

Gross and habitual neglect by the employee of his duties – Gross Negligence has been defined as the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. In orde orderr to to con const stit itut ute e jus justt cau cause se for for dis dismi miss ssal al,, the the negl neglec ectt mus mustt not not only only be gross but habitual. It is not necessary that damage or loss actually results


JS ALBARECE NOTES

Page 4 of 10

from the neglect. It is sufficient that the gross and habitual neglect tends to prejudice the employer’s interest. Abandonment, tardiness and absenteeism are forms of gross and habitual neglect of duties.

3.

Fraud or willful breach by employee of the trust reposed in him by his employer or duly authorized representative . Fraud is any act, omission, omission, or concealment concealment which involves a breach of legal duty, trust, or confidence justly reposed and is injurious to another. The The frau fraud d mus mustt be comm commit itte ted d aga again inst st the the empl employ oyer er and and in con conne nect ctio ion n with his work. Examples: a) Falsification of Time Cards b) Theft or pilferage of company property For Loss of Confidence to constitute as ground for dismissal the act comp compla laine ined d of must must be relat related ed to the perform performan ance ce of the duties duties of the employee such as would show him to be thereby unfit to continue working for the employer. The employee concerned must be 1) holding a position of trust and confidence (Manager), and/or 2) entrusted with confidence confidence on delicate delicate matters, or with, the custody, custody, handling or care and protection of the employer’s property (bank teller, cashier, salesmen, collectors, property custodians For loss loss of of tru trust an and con confide idence to to be va valid lid gro ground for for dism dismiissa ssal, it it must be substantial and not arbitrary, and must be founded on some clearly establis established hed facts. facts. It must must not be arbitrar arbitrarily ily asserted asserted against against overwhe overwhelmin lming g evidence to the contrary. It must be genuine and not a mere afterthought to justify an action taken in bad faith.

4.

Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or duly authorized representative – Conviction in a criminal case is not required. A case need not even be filed. Commission of acts constituting a crime is sufficient.

5.

Other causes analogous to the foregoing – foregoing – Commission of illegal acts or participation in an illegal strike. Unreasonable behavior and unpleasant deportment with the people he works with. Immorality- a conduct which is so willful, flagrant, or shameless as to show in defer deferen ence ce to the opin opinion ion of good good and and respe respecta ctabl ble e memb members ers of the the community. Sexual Harrasment- a form of unlawful sex discrimination. It is unwanted verbal or physical behavior of a sexual nature that occurs in the workplace or in an educational setting under certain conditions. Abandonment- the deliberate, unjustified refusal of an employee to resume his/her employment. - Tw Two o elem elemen ents ts must must be proved proved:: 1) the inte intenti ntion on to aba aband ndon on;; and and 2) an overt act from which it may be inferred inferred that the employee employee has no more intent to resume his/her work. *thi *this s is nega negate ted d by imme immedi diat ate e fili filing ng of an acti action on for for ILLE ILLEGA GAL L DISMISSAL Dismissal in relation to Closed Shop Agreement- The compan company y cannot cannot dismi dismiss ss an an employ employee ee on the mere allegati allegation on of the union. It must conduct an independent investigation of the charges before taking action.


JS ALBARECE NOTES

Page 5 of 10

ARTICLE 283.Closure of establishment and reduction of personnel. — The employer may also terminate the employment of any employee due to the instal installat lation ion of labor-s labor-savi aving ng devices, devices, redunda redundancy ncy,, retrenc retrenchmen hmentt to prevent prevent losse lossess or the the closi closing ng or cessa cessati tion on of opera operati tion on of the the estab establi lish shmen mentt or undert undertak akin ing g unle unless ss the the closi closing ng is for for the the purpo purpose se of circu circumv mvent entin ing g the the provisions of this title, by serving a written notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, redundancy, the worker affected affected thereby shall be entitled entitled to a separation pay equivalent to at least one (1) month pay or to at least one (1) mont month h pay pay for for ever everyy year year of serv servic ice, e, whic whiche heve verr is high higher er.. In case case of retren retrenchm chmen entt to preve prevent nt losse lossess and and in cases cases of closu closures res or cessa cessati tion on of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.

▲

AUTHORIZED CA CAUSES FO FOR TE TERMINATION 1.

Intro ntrod duct uction ion of la labor-s or-sa aving ing dev device ices: - Redu Reducti ction on of worke workers rs as a result result of intro introdu ducti ction on of new new machi machine nery ry or new methods. - Must Must be with with the the view view to effe effect ctin ing g more ore econ econom omy y and and effi effici cien ency cy production.

2.

Redundancy - exis exists ts wher where e the serv servic ices es of an empl employ oyee ee are are in exces excess s of what what is reasonably demanded by the actual requirements of the enterprise - a posit positio ion n has beco become me supe superf rflu luou ous s as an outc outcom ome e of a numbe numberr of factors factors such as overhirin overhiring g of workers, workers, decreas decreased ed volume volume of busines business, s, drop droppi ping ng of a part partic icul ular ar prod produc uctt line line or serv servic ice e acti activi vity ty prev previo ious usly ly manu manufa fact ctur ured ed or unde undert rtak aken en by the the ente enterp rpri rise se (THU (THUS S IT ONLY ONLY REQUIRES SUPERFLUITY NOT DUPLICATION OF WORK) - The redundancy SHOULD NOT have been created by the EMPLOYER. - An emplo employer yer can can not not declar declare e as redunda redundant nt a posit position ion creat created ed by by law. law.

3.

Retrenchment reso resort rted ed prim primar aril ily y to avoi avoid d or mini minimi mize ze busi busine ness ss loss losses es Retrenchment ma may be re resorted in in ca case of of a) busi busine ness ss loss losses es b) lack lack of wo work c) reductio reduction n in in the the volum volume e of of busin business ess d) fire reasonable criteria on who to lay off (1) less preferred preferred status status (2) efficienc efficiency y rating rating (3) (3) seni senior orit ity y (4) perfo perform rman ance ce (5) Last in-firs in-firstt out (option (optional) al) - Standards of retrenchment a. losses expected should be substantial and not merely de minimis in extent b. substantial loss apprehended must be reasonably imminent


JS ALBARECE NOTES

Page 6 of 10

c. retren retrenchm chmen entt must must be reason reasonab able le neces necessar sary y and and like likely ly to effectively prevent the expected losses d. alleg alleged ed losses losses,, if alrea already dy realiz realized ed,, and and the expec expected ted immine imminent nt losse losses s sough soughtt to be fores forestal talle led, d, must must be proven proven by suffic sufficie ient nt and and convincing evidence e. The company should have undertaken other cost-cutting means before retrenchment. I.e., retrenchment is the final option. option .

▲

4.

Clos Closur ure e of of busi busine ness ss as a res resul ultt of of gra grave ve fina financ ncia iall los loss s

5.

Closure not due to losses.

THE THE EMP EMPLO LOYE YER R MAY MAY TER TERMI MINA NATE TE THE THE SER SERVI VICE CES S OF OF AN AN EMPL EMPLOY OYEE EE DUE DUE TO TO AUTHORIZED CAUSES AFTER NOTICE AND PAYMENT OF SEPARATION PAY

Authorized Cause:

Amount of Separation Pay:

-

Inst Instal alla lati tion on of of labo laborr-sa savi ving ng dev devic ice e Redundancy

-

1 mon month th pay pay or or 1 mont month h pay pay for for eve every ry year of service whichever is higher.

-

Retr Retren ench chme ment nt to prev preven entt los losse ses s clos closur ures es or cess cessat atio ion n of oper operat atio ions ns of estab establis lishm hmen ents ts or unde underta rtakin king g NOT due to serious business losses or financial reverses disease

-

1 mon month pay pay or at at lea least 1/2 1/2 mon month pay for every year of service whichever is higher

-

- written notice served on the worker and worker and the DOLE at least 1 month before the intended date of termination.

ARTICLE 284.Disease as ground for termination. — An employer may terminate the services of an employee who has been found to be suffering from any disease disease and whose contin continued ued employmen employmentt is prohibi prohibited ted by law or is prejudicial to his health as well as the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one month salary or to one-hal one-halff month month salary salary for every year year of service service,, whichev whichever er is greater greater,, a fraction of at least six months being considered as one whole year.

▲

AILMENT OR DISEASE AS AUTHORIZED CAUSE FOR TERMINATION

- when his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees. co-employees . - he is paid separation pay of 1 month salary or 1/2 month salary for every year of service, whichever is greater. - there is a certification by a competent public health authority that the disease is of such of such nature or at such stage that it cannot be cured within a period of 6 months even with proper medical treatment.


JS ALBARECE NOTES

Page 7 of 10

▲

DUE PROCESS REQUIREMENTS 1.

2.

3.

-

-

▲

writte written n noti notice ce conta containi ining ng a stat statem emen entt of of the the cause causes s for for termi termina natio tion, n, and and givi giving ng the employee reasonable opportunity to explain his side. a heari hearing ng or confer conferen ence ce where where the the empl employe oyee, e, who who may may be assist assisted ed by counsel if he so desires, is given the opportunity to respond to the charge, present his own evidence, or rebut evidence against him (ample opportunity to defend himself) writ writte ten n noti notice ce of of term termin inat atio ion n serv served ed on on the the empl employ oyee ee ind indic icat atin ing g that that gro groun unds ds have been established to justify his termination based on due consideration of all the circumstances The The two two not notic ice e rule rule req requi uire res s the the empl employ oyer er to to furn furnis ish h the the work worker er sou sough ghtt to be be dismissed with two written notices before affecting the termination: a) First notice apprising apprising the employee employee of the particular particular acts or omissions omissions for which his dismissal is sought; b) Secon Second d notic notice e inform informing ing the the empl employe oyee e of the the emplo employer yer’s ’s decis decision ion to dismiss him. The The empl employ oyer er has has the the bur burde den n of pro provi ving ng wit with h subs substa tant ntia iall evid eviden ence ce the the law lawfu full cause sustaining the dismissal of the employer

EFFEC FECTS OF DISMI ISMIS SSAL WITH ITHOUT JU JUST CA CAUSE: 1)

Rein Reinst stat atem emen entt wit witho hout ut loss loss of sen senio iori rity ty and and oth other er priv privil ileg eges es - Reins Reinsta tatem temen entt shall shall be to his forme formerr work or posit position ion or to a substa substanti ntial ally ly equivalent position. - If reinstatement reinstatement is no longer possible, possible, separation separation pay in the amount of 1 month pay per year of service Instances when reinstatement is not possible: a.) Strained Strained relation relations s – may be invoked invoked only against against employees employees whos whose e posi positi tion on dema demand nds s trus trustt and and conf confid iden ence ce,, or whos whose e differences with their employer are of such nature or such degree as to preclude reinstatement b.) Position Position has has been been abolish abolished ed c.) Employe Employee e has reached reached retireme retirement nt age d.) Legitim Legitimate ate cessatio cessation n of business business - The dec decisi ision on of the Lab Labor or Arbite Arbiterr reinsta reinstatin ting g an emplo employee yee shal shalll be done done physi physical cally ly (actua (actuall reinst reinstat atem emen ent) t) or throu through gh payro payroll. ll. The award award is selfselfexecuting and does not need a motion for its execution.

2)

Full backwages, backwages, inclusive inclusive of allowanc allowances es and other other benefits benefits or their monetary equivalent. Backwages include the basic salary and regular allowances and other benefits the employee had been regularly receiving. Gene General rally ly an orde orderr of reinst reinstate ateme ment nt carrie carries s with with it the award award of back backwa wage ges. s. But But the the cour courtt may may abso absolv lve e the the empl employ oyer er from from liab liabil ilit ity y of backwages when good faith is evident. MERCURY DRUG RULE: Backwages is limited to a maximum of 3 years. FERRER DOCTRINE: Empl Employe oyerr may may dedu deduct ct any any amou amount nt earne earned d by the the employee during his unemployment. BUSTAMANTE DOCTRINE: Full backwages without limit and deduction.

3)

Damages – Relief available under the Civil Code against the illegality of the manner of separation a) Moral-If Moral-If the dismis dismissal sal is in bad faith, faith, attende attended d by fraud or is oppressi oppressive ve to labor or if against public policy, good customs and morals. The award


JS ALBARECE NOTES

Page 8 of 10

compensates for the diverse injuries such as mental anguish, besmirched reputation, social humiliation, wounded feeling. b) Exempla Exemplary-If ry-If the dismiss dismissal al is wanton, wanton, oppressive oppressive,, or malevole malevolent. nt. The award is intended to discourage similar conduct. c) Attorney Attorney’s ’s FeesFees- When there there is show showing ing of bad bad faith on on the part part of the emplo employe yerr or when when the the compla complaina inant nt is compe compelle lled d to litig litigate ate or incur incur expenses to protect his interest.

▲

-

Gene Genera rall lly, y, off offic icer ers s of a corp corpor orat atio ion n are not not per perso sona nall lly y liabl liable e for for thei theirr offic officia iall acts unless it is shown that they exceeded their authority. However, when the veil of corporation fiction is used 1) as a means to perpetuate fraud or an illegal act, or 2) as a vehicle for the evasion of an existing obligation, 3) the circumvention of statutes, or 4) to confuse legitimate issues, the same may be lifted.

-

In our our jur juris ispr prud uden ence ce,, quit quitcl clai aims ms,, waiv waiver ers, s, or or rele releas ases es are are loo looke ked d upon upon wit with h disfavor. Such documents do not estop an employee from pursuing the full extent of his claim. Exception: when the contract is entered into freely and voluntarily.

EFFE EFFECT CT OF TERM TERMIN INAT ATIO ION N WITH WITHOU OUT T DUE DUE PROC PROCES ESS: S: 1)

In Wenphil Corporation vs. NLRC: Payment of indemnity in the amount of P1,000.00 for the violation of due process.

2)

In Serrano vs. NLRC: Affec Affecte ted d empl employe oyee e shall shall be entit entitle led d to backw backwag ages es from from the the time time he was terminated until the decision becomes final.

3)

In Agabon vs. NLRC: The dismissal is valid but the employer would have to indemnify the employee for for the violatio violation n of his his right right,, in the amount amount of P30,0 P30,000 00.0 .00. 0. The The amou amount nt indemnity shall depend on the gravity of the due process violation and the facts of the case.

ARTICL ARTICLE E 285.Termi 285.Terminat nation ion by employ employee. ee. — (a) An employee employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. (b) An employee employee may put an end to the relation relationshi ship p without without serving serving any notice on the employer for any of the following just causes: (1) Seri Serious ous insul insultt by the the em empl ploy oyer er or his his repres represen enta tati tive ve on the the honor and person of the employee; (2) Inhuman and unbearable unbearable treatment treatment accorded accorded the employee by the employer or his representative; (3) (3) Comm Commis issi sion on of a crim crimee or offe offens nsee by the the em empl ploy oyer er or his his representative against the person of the employee or any of the immediate members of his family; and (4) Other causes causes analogous analogous to any of the the foregoing. foregoing. RESIGNATION is the voluntary act of an employee who “finds himself in a situation where he believes that personal reason cannot be sacrificed for in favor of the exige exigenc ncies ies of the the servic service, e, then then he has has no other other choice choice but but to dissoc dissociat iate e


JS ALBARECE NOTES

Page 9 of 10

himself himself from his employmen employment. t. It may be withdraw withdrawn n but not when when already already accepted.

▲

TWO KINDS OF RESIGNATION A) WITH WITHOU OUT T CAUS CAUSE E 1. at lea least st 1 month month PRIOR PRIOR NOTIC NOTICE E 2. employee employee may be held held liable liable for damages damages for failure to give notice B) WITH WITH JUST JUST CAUS CAUSE E 1. GROUNDS a. serious serious insult insult on the hono honorr and perso person n of emplo employee yee by by the employe employer r or his representative b. inhumane and unbearable treatment accorded to the employee c. comm commiss issio ion n of a crime crime agains againstt person person of the employ employee ee or any of the immediate members of his family d. other other causes causes analo analogou gous s to the the foreg foregoing oing 2. NOTI NOTICE CE NOT NOT NEC NECES ESSA SARY RY NOTE: NOTE:

Resigni Resigning ng employee employee not entitled entitled to separation separation pay, unless unless compan company y policy gives it.

ARTICLE ARTICLE 286.When employment employment not deemed terminated. terminated. — The bona fide suspension suspension of the operation operation of a business or undertaking undertaking for a period not exceeding exceeding six months, or the fulfillm fulfillment ent by the employee of a military military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations of his employer or from his relief from the military or civic duty. ▲

EMPLOYMENT NOT DEEMED TERMINATED bon bona fide fide sus suspe pens nsio ion n of the the ope opera rati tion on of of a busi busine ness ss/u /und nder erta taki king ng for for a per perio iod d of not more than 6 months fulfil lfillm lme ent by by th the em employ loyee of of a milit ilita ary or civ civic ic duty Emplo mploye yerr shal shalll rein reinst stat ate e the the empl employ oyee ee to to his his form former er pos posit itio ion n with withou outt loss loss of of seniority rights IF employee indicates his desire to resume his work not later than 1 month from resumption of operations of his employer or his relief from the military or civic duty

▲

CONSTRUCTIVE DISMISSAL -

a quit quitti ting ng beca becaus use e cont contin inue ued d unreasonable or unlikely. Examples: a) demotion b) diminution in benefits c) transfers in bad faith d) prolonged floating status.

empl employ oyme ment nt

is

rend render ered ed

impo imposs ssib ible le,,


JS ALBARECE NOTES

Page 10 of 10

TITLE II Retirement from the Service Art. rt. 287. 87. Retirement ent. — Any empl emplo oyee may may be ret retired red upo upon reachin reaching g the retire retiremen mentt age establ establish ished ed in the collec collecti tive ve bargai bargainin ning g agreement or other applicable employment contract. In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any colle collect ctiv ivee barga bargain inin ing g agree agreemen mentt and and othe otherr agree agreeme ment nts: s: Provi Provided ded,, however, however, That That an employ employee' ee'ss retirem retirement ent benefit benefitss under under any collec collectiv tivee bargaining and other agreements shall not be less than those provided herein. In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, service, a fraction fraction of at least six (6) months being considered as one whole year. Unless the parties provide for broader inclusions, the term one-half (1/2) month salary shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves. Retai Retail, l, service service and agricu agricultu ltural ral establ establish ishmen ments ts or operati operations ons employing not more than (10) employees or workers are exempted from the coverage of this provision. Violation of this provision is hereby declared unlawful and subject to the penal provisions provided under Article 288 of this Code. (As amended by R.A. No. 7641) ▲

RETIREMENT PAY LAW (RA 7641) A.

WHO ARE EXEMPTED: retail, service, agricultural establishments or operations employing not more than 10 employees or workers B. KINDS: 1. OPTIONA OPTIONAL L - 60 60 years years old old / 5 years years in service service 2. COMPULS COMPULSORY ORY - 65 years years old/ old/ regard regardless less or or years years of service service C. BENEFITS: BENEFITS: 1/2 month month salary salary per per year year of service which which shall shall include: include: (22.5 (22.5 days) days) 1. 15-da 15-day y bas basic ic wage wage,, plus plus th 2. 1/12 of the 13 month pay, plus 3. 5-day 5-day Service Service incentiv incentive e leave leave pay plus plus * a fraction of at least 6 mos. considered as one whole year 4. other benefits benefits as as maybe agreed upon by the employer employer and and employee employee


JS ALBARECE NOTES

Outline on Post Employment, Book Six

Recommend Documents