LAWFUL EMPLOYEE FIRING: AN HR's GUIDE ON LEGAL HIRING AND FIRING
EMPLOYEE GRIEVANCES:
“My employer did not give me contract when I started my job 3 years ago. They just ended my employment as a cashier because according to the owner I did not sign anything.” – Anne (Cashier)
“My employer asked me to resign immediately because the business is not doing well. She said, I can get the last days I worked with her in the next 30 days.” – Carl (Architectural Designer)
“I am a manager in a start-up company with 28 headcount including myself. The owner ended my contract when my team did not meet the sales quota.’ – Jean (Sales Manager)
Business Lawsuit Cycle – Performance Management
Outlined below are the common malpractices which most organizations do not realize they have or if they do, insufficient knowledge to strategize to win. Please note that failure of one has the domino effect to the next.
Failure to select the right talent for the job.
Unable to conduct the correct performance management to both probationary and regular employees.
Failure to observe due process in terminating an employee can be costly to the business. Also, it is equally costly to retain a non-performing one
This study will guide an organization on how to avert from management and/or labor legal malpractice ramifications that are both beneficial to employees and employers. The goal of this research is to educate the Human Resource practitioners and/or business owners especially those who have limited access to legal remedies.
Security of tenure is a right of paramount value guaranteed by the 1987 Constitution in its Section 3 (Labor), Article XIII (Social Justice and Human Rights), and previously in Section 9, Article II, of the 1973 Constitution. This constitutional guarantee is an act of social justice. Security of tenure does not exclusively apply to regular employment only. It also applies to probationary, seasonal, project and other forms of employment during the effectivity thereof.
Managerial employees also enjoy the security of tenure. The principle of security of tenure applies not only to rank-and-file employee but also to managerial employees.
The fact that managerial employee does not by itself exclude him from the protection of the constitutional guarantee of security of tenure.
HR from the HEART Seminar – August 17, 2018, St. Mark Hotel, CC
PREROGATIVE TO DISCIPLINE AND DISMISS EMPLOYEES
What is the extent of the employer's prerogative to discipline and/or dismiss erring employees?
Right to discipline
Right to dismiss.
Right to discipline and/or dismiss, subject to police power.
Right to determine who to punish.
Right to prescribe company rules and regulations.
Right to impose penalty; proportionality rule.
Right to choose which penalty to impose.
Right to impose heavier penalty than what the company rules prescribe.
Rule in case of first offense; effect when management tolerates violation of company policy.
DUE PROCESS
What are the “causes” to terminate employment?
1. “Just causes”
2. “Authorized causes”
Twin requirements of notice and hearing:
* First Written Notice
* Hearing Required (if applicable)
* Second Written Notice
In the situations mentioned below, hearing is not required to be conducted by the employer in order for the termination to be valid.
The dismissal is illegal if:
The dismissal is without just or authorized cause and there was no due process.
The dismissal is for just or authorized cause but due process was not observed.
The dismissal is for a cause which later on is proven to be non-existent.
The dismissal is not supported by evidence.
The dismissal is made pursuant to law.
PROJECT IMPLEMENTATION
As I further my conversation to both separated employees and HR practitioners, I found out that every Human Resource personnel must be adept and updated with the Labor Code. If they do not currently have the capacity, they should seek assistance from lawyers or HR experts to avert from heavy damage both financially and company’s reputation. At this point, the latin maxim “Ignorantia juris non excusat or ignorantia legis neminem excusat”definitely applies.
ABOUT THE AUTHOR
Jeward Remeticado is a first year law student of Universitiy of Southern Philippines – Foundation.
He’s currently working as a Training Manager in one of the BPOs in Cebu city.
He is also actively involved in Organizational Development with different clientele.
REFERENCES