Topic Termination Law
Topic Termination Law
Topic Termination Law
There are two essential requisites for a lawful termination, the (1) substantive
requirements, and (2) procedural requirements.
Substantive requirements refer to the reason for taking the
action. Unlike in the past where readiness to pay
separation pay is all that is needed to do away with the
services of an employee (under the old Termination Pay
Law), today such action must be based on a ground which
the law recognizes as sufficient and valid in order to justify
the termination. This basis may either be what is known as
just causes for termination or the so-called authorized
causes for termination.
On the other hand, even if a termination is based on what
is recognized by law as a valid or substantive ground, it
may still be considered unlawful if the process of
terminating the employee does not comply with the due
process requirements of the law. This is the procedural
aspect of termination. The law prescribes the manner of
putting termination into effect. Even if armed with a
sufficient basis to terminate, an employer may be deemed
to have done it unlawfully if he carries out the termination
without observing the required process.
• SUBSTANTIVE REQUIREMENTS
The procedures to comply with this requisite differ in just and authorized terminations.
In termination for a just cause, the due process requirements consist of the following:
a. Furnishing the employee with a written notice advising him of the offense he
committed and giving him the opportunity to answer the charges against him. This
notice requires that:
i. The details of the charge are sufficiently clear to provide the employee a complete
idea of the nature of the accusation against him.
ii. The notice must indicate in unmistakable terms the intention of the company to
terminate the employee if the charge is subsequently proven.
• b. Providing the employee an opportunity to be heard, to rebut the
accusation, to confront the witnesses against him and to present his
own, and to have the assistance of a lawyer if he so chooses.
c. Furnishing the employee a second written notice if, and only if, the
inquiry into his case proves that he really committed the offense.
On the other hand, in termination for authorized causes, the due process
requirements consist of the following:
This has been resolved already by the court in the case of Serrano
v. NLRC. Advance salary payment is not equivalent to notice.
Companies that do this risk being charged with failure to comply
with the due process requirement under the law. The notice of 30
days is meant to give the employee enough time to make the
corresponding adjustments in his drastically altered personal
situation. This is not remedied by giving him an advance pay. While
giving salary in lieu of notice may seem practical to both parties, the
thinking is that the employee must be given the time to make the
appropriate steps to adjust to his situation.
• JUST CAUSES OF TERMINATION
But what is common in these two kinds of offensive behavior is the fact
that both are characterized by a wrongful intent on the part of the
offender. As opposed to just being a mere mistake or error in judgment,
the acts covered by this provision of the law contemplate a deliberate and
calculated act. The defining term is that the offense is committed willfully.
• The charge of serious misconduct may attach to any kind of offense
provided:
These are the contentious issues in insubordination, when the requisite elements
of the offense are either absent or operate under different circumstances. First of
all, the law did not say that the order must come from the immediate superior but
from the employer or his representative. If the order is given by someone other
than the immediate superior, he should at least qualify himself as someone
representing the employer. What is material in insubordination is whether or not
the order is related or in connection with the employee’s work. Thus, if the order
is totally alien to the job of the employee, a refusal does not come within the
purview of insubordination. Most jobs have requirements for the incumbent to
assume work that is given or assigned from time to time, or periodically, meaning
a work that is not ordinarily a part of his usual routine. Thus, any refusal may be
considered as insubordination if it’s willful and deliberate.
If the employee was not able to comply because of an
emergency, is the refusal to comply still possible as
insubordination?
The law contemplates not just the closure of the entire company but
also of particular parts or sections, assuming that the same can be done
without impairing the entire operations.
This has been decided already by the courts. If the reason for the
closure is because of losses, the company may not anymore be obliged
to pay separation pay. Of course, if the employees are so minded, they
can file claims against the remaining assets of the corporation over
which they enjoy certain preferences over other claims.
Who and what factors determine who will be terminated in case of
retrenchment or redundancy?
The company must consider all the evidences presented by both parties,
and make a decision on the basis of what is contained in the records.
There is a tendency on the part of many employers to consider the
hearing aspect of due process as an annoying pro-forma requirement of
the law. That is not the intention for this. It is true that the company is the
one charging (by way of its representatives) and it is somewhat
incongruous to think that the company, in deciding the case, would
decide in a way that will contradict its very own accusation. Be that as it
may, it behooves the employer to ascertain the truth in every case, and
to grant allowances where the same may be due if the purpose is to be
able to grant justice. If the employee is not accountable, or if his
accountability is mitigated in any way, the employer should consider this
meting out its judgment.
• What are the legal procedures required in
implementing termination?