A GUIDE TO IMPLEMENTING DISCIPLINARY MEASURES

(IDM)

AMTES Group of Companies

The employer has the freedom to manage & regulate all aspects of running the business including carrying out discipline;

Pursuant to law, company policies & rules, the employer has the right & obligation too instil discipline among his employees & impose sanction after due notice & hearing of employees;

It is however required by law that employees’ labour rights must be equally protected;

An employee deserves to know why he is being disciplined or terminated and be able to defend his side;

Employees are entitled under the law to notice & due process;

Burden of proof rests on the employer;

OVERVIEW

ART. 212 of the Labor Code

“Employer” includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any officers or agents except when acting as employer

DEFINITION OF TERMS

ART. 212 of the Labor Code

“Supervisory Employees” are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgement

DEFINITION OF TERMS

“Except as limited by special laws, an employer is free too regulate according to his own discretion and judgement, all aspects of employment such as:

MANAGEMENT PREROGATIVES

1. Hiring;2. Work assignments;3. Working methods;4. Time;5. Place and manner of work;6. Tools to be used;7. Processes to be followed;8. Supervision of workers;9. Working regulations;

10. Transfer of employees;11. Work supervision;12. Lay-off;13. Discipline;14. Dismissal;15. Recall”

- NATIONAL LABOR UNION vs. INSULAR YEBANA CO. 2 SCRA 924- REPUBLIC SAVINGS BANK vs. CIR 21 SCRA 226

TO CHANGE UNDESIRABLE BEHAVIOR TO CONTROL & PROTECT THE COMPANY’S

INTEREST SERVES AS A DETERRENT FOR OTHERS TOO

COMMIT SIMILAR OFFENSE A REMINDER TO EMPLOYEE TO PERFORM

HIS FUNCTION IN THE PRESCRIBED MANNER & CONDUCT

PURPOSE OF DISCIPLINE

Employees need not accept nor agree with the policy of the company. It is because the policy has been laid down for him to adhere to and not to accept nor agree with.

DISCIPLINE

Employees need not accept nor agree with the policy of the company. It is because the policy has been laid down for him to adhere to and not to accept nor agree with.

Conditions however must exist before any company can rely on these rulings:

1. The rules and regulations of the company must be reasonable.

2. It must have been set for business reasons.

3. The same must have been fully communicated with the employees concerned.

DISCIPLINE

DUE PROCESS1. Written notice stating the grounds/violations2. Hearing or conference3. Written notice of suspension/dismissal

PENALTIES1. Oral reprimand2. Written reprimand3. Suspension4. Demotion5. Dismissal

GENERALLY, IMPOSITION OF PENALTIES IS PROGRESSIVE

BASIC POINTERS IN IDM

PREREQUISITE IN IMPOSING SUSPENSION/DISMISSAL1. Due Process2. Just/valid cause

QUANTUM OF PROOF – proof beyond reasonable doubt is not required in administrative case, substantial evidence is sufficient (incident report).

An incident/case must be investigated within 30 calendar days from the date of discovery of the offense.

Question & Answer (Q&A) is necessary in cases factual controversies and where the penalty is termination.

BASIC POINTERS IN IDM

The employee’s performance record and length of service

Whether the infraction was committed alone or in conspiracy with others

The frequency of the violation

The amount of money or value of property involved

OTHER FACTORS TO BE CONSIDERED IN DETERMINING THE PENALTY TO BE

IMPOSED

Supervisors do not decide but only recommend

Ideally, the Dept. Head together with the General Manager & HR Manager collectively decide on the case

BASIC POINTERS IN IDM

An employee may be placed under preventive suspension if his/her continued employment poses a serious & imminent threat to property or life of other employees;

Period of suspension is maximum of 30 days;

Wages & benefits are also suspended; Prelude to termination.

PREVENTIVE SUSPENSION

Writes INCIDENT REPORT addressed to Department Head (cc: GM/Admin)

Sends out NOTICE TO EXPLAIN (NTE) to concerned employee (cc: GM/Admin)

In minor offenses (Penalty prescribed for the offense is counseling to 15 days suspension) upon expiration of the period to submit written explanation with or without a response. The necessary RECOMMENDATION should be forwarded to the Department Head.

In serious offenses (penalty prescribed for the offense is more than 15 days to Termination) a NOTICE OF INVESTIGATION (NOI) should be issued.

EVALUATION AND RECOMMENDATION should be submitted to Department Head for review and approval. (cc: GM/Admin)

Incident should be investigated within 30 days upon knowledge of the incident

PROCESS OF IMPLEMENTING DISCIPLINARY MEASURES

SUPERVISOR LEVEL

Evaluates and decides on the recommendation upon consultation with Head (GM/Admin)

IMPLEMENTING MEMO (e.g. Written Warning) for the offense is signed by the Department Head and Finance & Admin Head (cc: Admin/GM)

Decision should be implemented within 30 days after completion of investigation

TERMINATION OF CASES In termination cases, RECOMMENDATION is forwarded to

Legal Counsel If the recommendation is affirmed, Legal Counsel prepares

IMPLEMENTING MEMO to be signed by the Department Head (cc: President/GM/F&A Head/201 File)

PROCESS OF IMPLEMENTING DISCIPLINARY MEASURES

DEPARTMENT HEAD LEVEL

Termination by Employer:

An employer may terminate an employment for any of the following causes:

Serious misconduct or wilful 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 wilful breach of the employee of the trust reposed

in him by his employer duly authorized representative; Commission of a crime or offence by the employee against

the person of his employer or any immediate member of his family or his duly representative; and

Other causes analogous to the foregoing.

ARTICLE 282 OF LABOR CODE

The premises underlying dismissal for prolonged absence is employee fault in depriving the employer of his services. There can only be fault if:

a) The employee has capacity to work; and

b) Desists, by his voluntary act, from reporting to work.

(NLRB VS. Vermont Furniture Corp. 182 F 2d 842)

ABSENTEEISM

A dismissal was sustained as proper where an employee, who had been absent five times without permission and had been warned that a similar offense would lead to his dismissal, once more absented himself twice without previous permission and without just excuse.

(Meralco Workers Union vs. Meralco, GR#L-11876)

ABSENTEEISM

Repeated absences without permission are something that should not be taken lightly in an enterprise and disregard of warnings against repetition of a series of absences amounts to gross indiscipline which no company should be compelled to tolerate.

(Meralco Case)

ABSENTEEISM

Absenteeism has long been recognized as a just and valid cause for dismissal for an employee (Almonte vs. Philippine American Drug, 106 Phil. 127). It cannot be taken for granted because it causes disruption in the operations of the employer. Each employee forms part of a machinery and his absence will necessarily cause the malfunctioning of the machinery as a whole. If the employee is absent without prior permission, the situation will be worse because not even a temporary replacement (who cannot function as efficiently as the one assigned to regularly perfoorm the job) can be assigned to fill up the vacuum. Thus in Meralco Workers Union vs. Manila Electric Company, 105 Phil. 133 (1959), the Supreme Court upheld the dismissal of an employee who was absent for only five (5) times.

Absence from work for a substantial period without the permission of the employer does not constitute a sufficient cause for dismissal. Even if in violation of the company rules, where the absence was not due to voluntary acts of the employees but was due to their detention by military authorities, and the employees reported for work immediately upon release.

(IBM vs. SMC 1 T1RB 133)

ABSENCES WITHOUT FAULT

The past behavior of the employer showed that, despite habitual absenteeism, the employee had never been disciplined. Such employee behavior provides a basis for inferring forgiveness or condonation.

(Arana vs. Vicra Mktg. 11 T1RB 1085)

CONDONATION OF ABSENCES

For insubordination to exist, there must be clear showing of the following:

1. There is the rule, order or instruction issued by the employer, personally or in his behalf through a person duly authorized by him.

2. Such rule, order or instruction is communicated to the employee.

3. Such rule, order or instruction is lawful and reasonable.

4. Such rule, order or instruction is disobeyed or disregarded, without just and lawful excuse.

5. The disobedience is wilful.

There is wilfulness if the employees overall behavior reflects a wrongful and perverse mental attitude of defiance or resistance, which is inconsistent with proper subordination.

INSUBORDINATION

Is there a rule, order or instruction?◦ Who was the source?

◦ In what form was it made?

◦ What was its subject?

◦ What was its object?

Is the rule, order or instruction lawful and reasonable?◦ Must not violate civil rights

◦ Must not offend public policy

Was it communicated to the employee concerned?◦ In writing

◦ Orally

◦ Directly; or through another

INSUBORDINATIONCHECKLIST

Was there wilful disobedience, or disregard of rule, order or instruction?◦ Rule, order or instruction unquestionably known to employee.

◦ Behavior or employee clearly violative of rule, order or instruction.

◦ Attendance circumstances shows employee aware, he was violating rule, order or instruction Reminder of rule, order or instruction

Remarks showing defiance while engaged in act

Was there resulting harm to employer interests?◦ Mishandling of operations

◦ Harm to machinery or materials

◦ Loss of paid time

◦ Injury to employee or other personnel

◦ Harm to goodwill

◦ Loss of revenue

INSUBORDINATIONCHECKLIST

As borne out by the record of this case, respondent company had repeatedly given the complainant sufficient time to report to his new place of assignment starting June 14, 1974 to August 3, 1974, and despite all the chances given to the complainant to report to his new place of assignment. Complainant continued to unjustifiably disobey the valid order of the company unless his demand for an increase of Php1.000.00 of his present monthly rate of Php1,500.00 or a monthly pay of Php2,500.00 is granted. Only would he then report to his new place of assignment. It is not the employee who should use the authority, the power and discretion to say how much should be the increase of pay and the giving of other privileges. Whether we like it or not. We have to obey orders. Directives or instructions coming from our superiors. If we have some complaints, we have to obey first, then later on lodge the complaint, but to disobey first the order because our demands are not heeded or granted, amounts to insubordination.

(Bacay vs. Pepsi Cola Bottling Co. 1 T1RB 790)

INSUBORDINATION

“Serious misconduct in the form of drunkenness and disorderly and violent behavior, - habitual neglect of duty, and insubordination or wilful disobedience of the lawful order of his superior officer are just causes for the dismissal of an employee” (Reference to Art. 282 of the Labor Code”

Justice Nocon

Club Filipino vs Sebastian, Et. Al.

July 23, 1992, GR 85490

EMPLOYEE DRUNKENNESS

The Rule is now well-settled that drunkenness while on duty, especially when coupled with disorderly behaviors and assault against superior, is a just cause to terminate the employment of an employee.

The Supreme Court ruled that an employer can validly terminate an employee for serious misconduct, for having physically assaulted and verbally abused a superior officer within the full view and hearing of other employees. This was in the case of Eastern Paper Mills, Inc. Vs. NLRC, et. Al., G.R. 85497 promulgated on February 24, 1989.

ASSAULT AGAINST SUPERIOR

An employee was held to be justifiably dismissed, where it was shown that he had a quarrel with a fellow employee leading to the infliction of injuries which were later made the basis of a court action.

(Indias vs. Phil. Icon Mines, 101 Phil. 297)

Dismissal was valid where the employee challenged his superior to a fight and inflicted injuries on him.

(Mindanao Rapid Co. Vs. Omandan, 42 SCRA265)

“Where the Private respondent, appears to be of violent temper, caused trouble during office hours and even defied his superiors as they tried to pacify him, should not be rewarded with reemployment and backwages. It may him to do even worse and will render a mockery of the rules of discipline that employees are required to observe.”

(Wenphil Corp. Vs. NLRC 170 SCRA 69 Feb. 8, 1989)

1. Profanity addressed to a forelady (T.W. Hepler, 7 NLRB 255)

2. Use of violent profanity on the telephone (West Bros., Inc. 104 NLRB 332)

3. Use of profanity toward manager when asked if he was threatening workers with loss of jobs if they did not join union. (Farmers Coop. Co. Vs. NLRB 208 F 2d 296)

4. Employee

TYPES OF ABUSIVE VERBAL BEHAVIOR SUSTAINED AS VALID GROUNDS FOR

DISMISSAL