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06 Jul

Regular Employment Rules (Part 2 of 3)

Regular employment is a form of employment where employees are accorded the security of tenure under Article 279 [now 294] of the Labor Code, as amended. Get an updated/re-numbered copy of the Labor Code 2017 by Atty. Elvin Why is it important to know whether the position is regular or not? Regular employees can only be dismissed based on just or authorized cause or those provided under the Labor Code. Non-regular workers may be separated from the company for failure to [...]

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04 Jul

Regular Employment Rules (Part 1 of 3)

Regular employment is one of the forms of employment under Article 280 [now Article 295] of the Labor Code, as amended. The rules are discussed below. Get an updated copy of the re-numbered Labor Code 2017 The discussion is based on the book Guide to Valid Dismissal of Employees Second Edition (pp. 92-94). The nature of one’s employment does not depend on the will or word of the employer. Nor on the procedure of hiring and the manner of designating the employee, [...]

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02 Jul

Substantial Evidence is the Standard of Proof Required in Labor Cases

Substantial evidence is that amount of evidence which a reasonable mind might accept as adequate to justify a conclusion. Proving a labor case does not have to be beyond reasonable doubt. Proof that is substantial enough to support a position may be sufficient to establish a claim or defense. The post below is based on the book Guide to Valid Dismissal of Employees Second Edition (pp. 88-89). In evaluating evidence available in a dismissal case, must the guilt of an employee [...]

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30 Jun

Authorized cause is one of the Processes to Terminate Employees

Authorized cause for termination is provided under Article 283 [now 298 as re-numbered] of the Labor Code, as amended. Unlike the just cause found under Article 282 [now 297], the employee being terminated is not at fault. The changing business conditions or situations are the reason for the loss of employment. Re-numbered Labor Code 2017 by Atty. Elvin now available for pre-launch orders While dismissal when it is the fault of employee requires hearing or conference, termination due to authorized cause does not [...]

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29 Jun

Right Against Self-Incrimination may be Invoked in Administrative Proceeding

Right against self-incrimination is a constitutionally established right of an individual not to be compelled as witness against himself. Thus, he can invoke the right against self-incrimination when faced with questions that threaten criminal prosecution. The post below is based on the book Guide to Valid Dismissal Second Edition (pp. 79-80). The right against self-incrimination may be invoked in an administrative proceeding. Corollarily, it may happen that an employee, for fear that what he might say in an administrative proceeding may be [...]

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28 Jun

Admission of the Offense Being Charged may be a Reason to Dispense Actual Hearing

Admission operates against the person declaring such statements. While as a general rule a hearing or conference is required in employee dismissal if the worker admits having committed an offense it can stand as an exception to this rule. The post below is based on the book Guide to Valid Dismissal of Employees Second Edition (pp. 77-79). Although the law and jurisprudence have been very emphatic in mandating the observance of hearing as part of the due process requirement, there are certain [...]

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27 Jun

Hearing or Conference, in certain situations, can be Dispensed with

Hearing or conference may not be necessary in cases where the employee admits the offense. Thus, there are instances that are exceptions to the requirement of holding a hearing or conference. The post below is based on the book Guide to Valid Dismissal of Employees Second Edition (pp. 75-77) In the following instances, the Court emphasized the importance of due process: 1. When dismissal is already apparent before due process was accorded. 2. Suspicion cannot be made as basis for dismissal. Factual findings, carefully [...]

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27 Jun

Hearing or Conference is not a Trial Court Proceeding and still Valid Despite Absence of Trial Technicalities

Hearing or conference in termination cases need not be conducted in a trial type manner. It is sufficient that the employee to be dismissed is given an ample opportunity to be heard. The post below is based on the book Guide to Valid Dismissal of Employees Second Edition. In a regular trial court procedure, the parties present evidence in the manner provided by the Rules of Court, except in certain instances where these requirements are not mandatory. The parties are subjected [...]

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25 Jun

Hearing or Conference Must be Held to Give Employee Ample Opportunity to be Heard

Hearing or conference is one of the requirements of procedural due process in employee dismissal. As a general rule, this should be held to satisfy the statutory requirements. There are exceptions to the holding of the hearing or conference though The post below is based on the book Guide to Valid Dismissal of Employees Second Edition. After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain [...]

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24 Jun

Notice to Explain, if not Served Personally, Must be Sent to Employee’s Last Known Address

Notice to Explain must be served personally as a general rule. If it is not possible, it should be sent by registered mail to the last known address of the employee. The post below is based on the book Guide to Valid Dismissal of Employees (page 69): In case of termination, the notices shall be served on the employee’s last known address. This is usually found in the HR databases or 201 file. It is a good practice to update these records [...]

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