Notice Requirement in Redundancy and Issue on Bad FaithAtty Elvin
It is clear from the wordings of Article 298 of the Labor Code, as amended, that notice to the employee should be made at least one month before the redundancy takes effect.
If the employee consents to the redundancy, will the lack of notice comply with the procedural requirement?
In the case of Santos vs. CA (G.R. No. 141947, July 5, 2001), the Supreme Court with the NLRC interpretation in the case of International Hardware vs. NLRC68 that the mandated one (1) month notice prior to termination given to the worker and the DOLE is rendered unnecessary by the consent of the worker himself.
Does the creation of new position after declaring another redundant indicate bad faith?
In one case, the employer declared redundant the position of Complimentary Distribution Specialists
(CDS). Thereafter, it created a new position Account Development Managers (ADM).
The holders of CDS position filed a complaint for illegal dismissal contending that their redundancy is not valid since ADM is the same position as The Supreme Court disagreed based on substantial evidence found by the Labor Arbiter and the NLRC that the ADM and CDS perform different functions. Among the distinctions are as follows:
- CDS report to a CD Manager, whereas the ADMs do not report to the CD Manager;
- CDS are field personnel who drive assigned vehicles and deliver stocks to “dealers” who, un- der the job description are those who sell and deliver the same stocks to smaller retail outlets in their assigned areas. The ADMs are not required to drive trucks and they do not physically deliver stocks to wholesale dealers. Instead, they help “dealers” market the stocks through retail.
Read more on procedural due process discussion by Atty. Elvin:
Read more on procedural due process by Atty. Villanueva: