illegal dismissal term paper

7/28/2019 Illegal Dismissal Term Paper

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ILLEGAL DISMISSAL

Ramil F. De Jesus

Introduction

Ones job is ones property. If a person will be deprived of his job it is

equivalent to deprivation of property which the Constitution amply protects. The

Bill of Rights of the Constitution provides:

No person shall be deprived of life, liberty or propertywithout due process.

The Labor Code of the Philippines however, provides for circumstances

when an employee may be dismissed from the service:

(a) Serious misconduct or willfuldisobedience by the employee of the lawfulorders of his employer or representative inconnection with his work;

(b) Gross and habitual neglect by theemployee of his duties;

(c) Fraud or willful breach by the

employee of the trust reposed in him by hisemployer or duly authorized representative;

(d) Commission of a crime or offenseby the employee against the person of hisemployer or representativesany immediatemember of his family or his duly authorized;and

(e) Other causes analogous to theforegoing.

There are other authorixzed causes where an employer may validly

terminatiesan employees. They are [provided in Art. 283 of the Labor Code, itr

states:

Under Article 283 of the Labor Code,the employer may also terminate theemployment of any employee due to theinstallation of labor-saving devices,

redundancy, retrenchment to prevent lossesor the closing or cessation of operation of theestablishment or undertaking unless theclosing is for the purpose of circumventing theprovisions of this Title, by serving a writtennotice on the workers and the Department ofLabor and Employment at least one (1) monthbefore the intended date thereof. In case of


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termination due to the installation of labor-saving devices or redundancy, the workeraffected thereby shall be entitled to aseparation pay equivalent to at least his one(1) month pay or to at least one (1) month pay

for every year of service, whichever is higher.In case of retrenchment to prevent losses andin cases of closures or cessation ofoperations of establishment or undertakingnot due to serious business losses orfinancial reverses, the separation pay shall beequivalent to one (1) month pay or at leastone-half (1/2) month pay for every year ofservice, whichever is higher. A fraction of atleast six (6) months shall be considered one(1) whole year.

When the termination effected is not in accordance with the above

provisions then the termination is illegal and the dismissed employee shall be

reinstated with full backwageswithout loss of seniority ranks. In some

circumstances, even if the termination of services is in accordance with the

above mentioned provisions when the termination, the termination may be

considered as illegal and may subject the employer to payment of damages.

Illegal dismissal amounts to deprivation of property, a right which is fully

and amply protected by the Constitution. The contribution of Labor in the

development of the country is equally respected by the Constitution as it

provides:

Objectives:

1. To provide an overview on the topic of illegal dismissal

2. To discuss the effect of illegal dismissal.

Discussion

Termination by employer means the act of dismissing an employee in a

manner provided in the Labor Code. Any other means of dismissing an employee

and in accordance with the Labor Code is illegal dismissal.

Ser ious m iscond uct or wi l l ful disob edience by the employ ee of the lawful

orders of his emp loyer or representat ive in conn ect ion with his w ork


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One of the just causes enumerated in the Labor Code is serious

misconduct. Misconduct is improper or wrong conduct. It is the transgression of

some established and definite rule of action, a forbidden act, a dereliction of duty,

willful in character, and implies wrongful intent and not mere error in judgment.

Such misconduct, however serious, must nevertheless be in connection with the

employee's work to constitute just cause for his separation. Thus, for misconduct

or improper behavior to be a just cause for dismissal, (a) it must be serious; (b) it

must relate to the performance of the employees duties; and (c) it must show

that the employee has become unfit to continue working for the employer.( G.R.

No. 164181). In this case, the Court found the language of the letter explanation

of an employee to constitute improper or wrong conduct that warrants dismissal,

it ruled:

Going through the records, this Court found evidence tosupport the allegation of serious misconduct orinsubordination. Petitioner claims that the language used

by respondent in his Letter-Explanation is akin to amanifest refusal to cooperate with company officers, andresorted to conduct which smacks of outright disrespectand willful defiance of authority or insubordination. Themisconduct to be serious within the meaning of the LaborCode must be of such a grave and aggravated characterand not merely trivial or unimportant.[20] The Letter-Explanation[21] partly reads:

Again, it's not negligence on my part and I'm not aloneto be blamed. It's negligence on your part [Perla Go]and A.A. Del Rosario kasi, noong pang April 1999 ay

alamninyonahindiakoangdapat may responsibilidad ngpayroll kundiang Section Head ehbakithindininyopinahawaksa Section Head noon pa.Patikamingdalawasa payroll, kasamakosi Thelma.Tinanggalnyosi Thelma. Hindinyobanaisipnakailangandalawaangtaosa payrollparapag absent angisa ay may gagawa. Dapat noonnyo pa naisipiyan.Angtagalkonggumawa ngtrabahonghindikonamandapatginagawa.

This Court finds the above to be grossly discourteousin content and tenor. The most appropriate thing he could

have done was simply to state his facts without resorting tosuch strong language. Past decisions of this Court havebeen one in ruling that accusatory and inflammatorylanguage used by an employee to the employer or superiorcan be a ground for dismissal or termination.(NissanMotor Phils. V. Angelo, G. R. No. 164181)

Gross habitual neglect of duty


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The Supreme Court in ruling the case of ____G.R. No. 109390, defined:

Gross negligence connotes want of care in theperformance of one's duties. Habitual neglect impliesrepeated failure to perform one's duties for a period oftime, depending upon the circumstances. On the other

hand, fraud and willful neglect of duties imply bad faithon the part of the employee in failing to perform his jobto the detriment of the employer and the latter'sbusiness.

To dismiss an employee on the gropund of gross habitual neglect of duty Art. 282

provides that an employer may terminate an employee for "gross and habitual neglect by

the employee of his duties" and for "fraud." In both instances, substantial evidence is

necessary for an employer to effectuate any dismissal. Uncorroborated assertions and

accusations by the employer do not suffice, otherwise the constitutional guaranty of

security of tenure of the employee would be jeopardized. Article 282 (b) imposes a

stringent condition before an employer may terminate an employment due to gross and

habitual neglect by the employee of his duties. To sustain a termination of employment

based on this provision of law, the negligence must not only be gross but also habitual.

(G.R. No. 180123)

The dismissal anchored on this cause is very stringent. In G.R. 152166, the

Court stated that under Article 282 (b) of the Labor Code, an employer may terminate an

employee for gross and habitual neglect of duties. Neglect of duty, to be a ground for

dismissal, must be both gross and habitual. Gross negligence connotes want of care in

the performance of ones duties. Habitual neglect implies repeated failure to perform

ones duties for a period of time, depending upon the circumstances. A single or isolated

act of negligence does not constitute a just cause for the dismissal of the employee.

It finds that:

Under the prevailing circumstances, respondent exercised hisbest judgment in monitoring the CCTV cameras so as toensure the security within the hospital premises. Verily,assuming arguendo that respondent was negligent, althoughthis Court finds otherwise, the lapse or inaction could only beregarded as a single or isolated act of negligence that cannotbe categorized as habitual and, hence, not a just cause for his

dismissal.

Petitioners anchor on the postulate that even a single orisolated act of negligence by respondent constitutes a justcause for his dismissal as it engendered the possibility of alegal action that may be taken against them by the owner ofthe lost items. This is purely speculative. The Certification,22dated July 8, 1999, issued by Renato PolitudValebia, Police


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Article 282(c) of the Labor Code prescribes two separate and distinct grounds for

termination of employment, namely: (1) fraud; or (2) willful breach by the employee of

the trust reposed in him by his employer or duly authorized representative.

Law and jurisprudence have long recognized the right of employers to dismiss

employees by reason of loss of trust and confidence.[Etcuban, Jr. v. Sulpicio Lines, Inc.,

489 Phil. 483, 496 (2005).] As provided for in Article 282, an employer may terminate an

employees employment for fraud or willful breach of trust reposed in him. But, in order

to constitute a just cause for dismissal, the act complained of must be work -related

such as would show the employee concerned to be unfit to continue working for the

employer.[G.R. No. 169564 citing CA rollo p3-0, penned by Associate Justice Delilah

Vidallon-Magtolis and concurred in by Associate Justices Arturo D. Brion (now Member

of this Court) and Jose C. Reyes, Jr.).

In another case of dismissal of employee because of loss of trust and confidence

the Court ruled:

The first requisite for dismissal on the ground of loss of trustand confidence is that the employee concerned must beholding a position of trust and confidence. In this case, thereis no doubt that James held a position of trust and confidenceas Assistant Vice-President of the Jewelry Department.

The second requisite is that there must be an act thatwould justify the loss of trust and confidence. Loss of trustand confidence, to be a valid cause for dismissal, must bebased on a willful breach of trust and founded on clearlyestablished facts. The basis for the dismissal must be clearlyand convincingly established but proof beyond reasonabledoubt is not necessary.[Abel v. Philex Mining Corporation,

G.R. No. 178976, July 31, 2009, 594 SCRA 683, 694.]

Commission of a crime or offense by the employee against the person of hisemployer or representatives any immediate member of his family or his dulyauthorized

In Starlite Plastic Industrial Corp. v. NLRC, the Court ruled that:

Thus as correctly found by the Labor Arbiter, the mauling

incident by itself was a valid ground to terminate

complainants services considering that the victim was a

manager and therefore a duly authorized representative of

respondents. It does not matter later on that the case was

settled by the execution of an affidavit of desistance because

conviction of an employee in a criminal case is not

indispensable to warrant his dismissal by his employer and

that the fact that a criminal complaint against the employee

has been dropped by the City Fiscal is not binding and


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conclusive upon a labor tribunal. (Starlite Plastic Industrial

Corp. vs. NLRC, 171 SCRA 315)

Authorize cause

The Labor Code provides in Art. 283.

CLOSURE OF ESTABLISHMENT AND REDUCTION OF PERSONNEL. The employer

may also terminate the employment of any employee due to the installation of labor-

saving devices, redundancy, retrenchment to prevent losses or the closing or cessation

of operation of establishment or undertaking unless the closing is for the purpose of

circumventing the provisions of this Title by serving a written notice on the worker and

the Ministry 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, the worker affected thereby shall be entitled to separation pay equivalent to

at least his one (1) month pay or at least one (1) month pay for every year of service,

whichever is higher. In case of retrenchment to prevent losses and in cases of closures

or cessation 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 as one (1) whole year.

However to prevent the abuse of some employers of this provision, the Lagor Code also

provides for a more stringent rule for thiusauthiowrize cause for termination.

In Lopez Sugar Corporation v. Federation of Free Workers,[11] this Court had the

opportunity to lay down the following standards that a company must meet to justify

retrenchment to prevent abuse by employers:

Firstly, the losses expected should be substantial and notmerely de minimis in extent. If the loss purportedly sought tobe forestalled by retrenchment is clearly shown to beinsubstantial and inconsequential in character, the bona fide

nature of retrenchment would appear to be seriously inquestion. Secondly, the substantial loss apprehended mustbe reasonably imminent, as such imminence can beperceived objectively and in good faith by the employer.There should, in other words, be a certain degree of urgencyfor the retrenchment, which is after all a drastic recourse withserious consequences for the livelihood of the employeesretired or otherwise laid-off. Because of the consequentialnature of retrenchment, it must, thirdly, be reasonablynecessary and likely to effectively prevent the expectedlosses. The employer should have taken other measures prioror parallel to retrenchment to forestall losses, i.e., cut other

costs other than labor costs. An employer who, for instance,lays off substantial numbers of workers while continuing todispense fat executive bonuses and perquisites or so-calledgolden parachutes, can scarcely claim to be retrenching ingood faith to avoid losses. To impart operational meaning tothe constitutional policy of providing full protection to labor,the employers prerogative to bring down labor costs byretrenching must be exercised essentially as a measure of


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last resort, after less drastic means e.g., reduction of bothmanagement and rank-and-file bonuses and salaries, goingon reduced time, improving manufacturing efficiencies,trimming of marketing and advertising costs, etc. have beentried and found wanting.

Lastly, but certainly not the least important, alleged losses ifalready realized, and the expected imminent losses sought tobe forestalled, must be proved by sufficient and convincingevidence. The reason for requiring this quantum of proof isreadily apparent: any less exacting standard of proof wouldrender too easy the abuse of this ground for termination ofservices of employees.

Effect of Illegal Dismissal

The Labor Code requires a valid cause to terminate an employee. If there is no

valid cause, there is no valid termination and the employer will be held liable for illegal

dismissal. If the cause of dismissal falls under any of the five circumstances of Article

282, no separation pay shall be given to the dismissed employee. In dismissal cases

falling under Article 283, separation pay shall only be required if the dismissal is due to

the installation of labor-saving devices or redundancy. In these two cases, the worker

affected thereby shall be entitled to a separation pay equivalent to at least his one (1)

month pay or to at least one (1) month pay for every year of service, whichever is higher.

If the dismissal is due to retrenchment to prevent losses or closures or cessation 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. In all cases, a

fraction of at least six (6) months shall be considered one (1) whole year.

On the other hand if the dismissal is due to retrenchment to prevent losses or

closures or cessation of operations of establishment or undertaking due to serious

business losses or financial reverses no separation pay shall be given to the dismissed

employee.(http://www.abogadomo.com/law-professor/law-professor-archives/points-to-

remember-in-dismissal-cases)
http://www.abogadomo.com/law-professor/law-professor-archives/points-to-remember-in-dismissal-caseshttp://www.abogadomo.com/law-professor/law-professor-archives/points-to-remember-in-dismissal-caseshttp://www.abogadomo.com/law-professor/law-professor-archives/points-to-remember-in-dismissal-caseshttp://www.abogadomo.com/law-professor/law-professor-archives/points-to-remember-in-dismissal-caseshttp://www.abogadomo.com/law-professor/law-professor-archives/points-to-remember-in-dismissal-caseshttp://www.abogadomo.com/law-professor/law-professor-archives/points-to-remember-in-dismissal-cases


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In some cases where there exist a valid authorized cause for dismissal the

dismissed employee may be awarded damage for failure on the part of the employer to

follow the procedures below, to wit;

a. Notice The employer shall furnish the workers a written notice stating the

particular acts or omissions constituting the grounds for his dismissal. In cases of

abandonment of work, the notice shall be served at the workers last known address.

b. Answer The worker may answer the allegations stated against him in the

notice within a reasonable period.

c. Hearing The employer shall afford the worker ample opportunity to be heard

and defend himself with the assistance of his representative, if he so desires.

d. Notice of decision The employer shall immediately notify a worker in writing

of a decision to dismiss him stating clearly the reasons therefor.

e. Report on dismissal The employer shall submit a monthly report to the

regional Office having jurisdiction over the place of work, all dismissals effected by him

during the month, specifying therein the names of the dismissed workers, the reasons

for their dismissal, the dates of commencement and termination of employment, the

positions last held by them and such other information as may be required by the

Department of labor for policy guidance and statistical purposes.

In one case the where an employees dismissal was found to be based on just

cause but the procedural due process was not observed the Court ruled:

In an unlawful dismissal case, the employer has the burdenof proving the lawful cause sustaining the dismissal of the

employee. The employer must affirmatively show rationallyadequate evidence that the dismissal was for a justifiablecause. Dys behavior constituted just cause. However,petitioners cannot deny that they failed to observe dueprocess. The law requires that the employer must furnish theworker sought to be dismissed with two written notices beforetermination of employment can be legally effected: (1) noticewhich apprises the employee of the particular acts oromissions for which his dismissal is sought; and (2) thesubsequent notice which informs the employee of theemployers decision to dismiss him. Failure to comply with therequirements taints the dismissal with illegality.

Petitioners should thus indemnify Dy for their failure toobserve the requirements of due process. Dy is not entitled toreinstatement, backwages and attorneys fees because Dysdismissal is for just cause but without due process. In light ofthis Courts ruling in Agabon v. National Labor RelationsCommission, the violation of Dys right to statutory dueprocess by petitioners, even if the dismissal was for a just


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cause, warrants the payment of indemnity in the form ofnominal damages. This indemnity is intended not to penalizethe employer but to vindicate or recognize the employeesright to statutory due process which was violated by theemployer.Considering that both the Labor Arbiter and theNLRC found that petitioners already gave Dy P120,000 of

their own free will, this amount should thus constitute thenominal damages due to Dy.(G.R. No. 173231).

Conclusion

An employer is the owner of the business. As such he is vested with prerogatives

on how to run his business. But this prerogative is not absolute. It has to follow and

observe the constitutional and statutory limitations to protect the rights of his employees

as well as promote social justice.

illegal dismissal term paper

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