atty. elvin Archives - Page 14 of 21

11 Apr

Burden of Proof in Constructive Dismissal

Burden of proof is the standard required in proving a case. In cases of constructive dismissal, the burden of proof is on the employer to show that the employee was dismissed for a valid and a just cause. (Suldao vs. Cimech System Construction, Inc., G.R. No. 171392, October 30, 2006.) This means that if the employee claims he was constructively dismissed from service and sues the employer, it is the employer who must prove that the employee was not dismissed from [...]

By Atty Elvin Labor Law atty. elvin, burden of proof, constructive dismissal, dismissal, due process, Just Cause, labor case, Labor Code, labor law, nlrc 22 Comments Read more...

08 Apr

Constructive Dismissal

Constructive dismissal occurs when there is cessation of work because continued employment is rendered impossible, unreasonable, or unlikely as when there is a demotion in rank or diminution in pay or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee leaving the latter with no other option but to quit. (Tan Brothers Corporation of Basilan City vs. Escudero G.R. No. 188711, July 3, 2013 citing The University of Immaculate Conception vs. NLRC, G.R. [...]

By Atty Elvin Labor Law atty. elvin, constructive dismissal, dismissal, employee, employer, employment, Just Cause, labor, Labor Code, management prerogative 19 Comments Read more...

28 Mar

Employee Termination Based on Form of Employment

Termination of employee depends on the form of employment. Just cause or authorized cause as ground for dismissal is the only blanket ground applicable to all forms. Hence, to terminate employee, it can be argued that there are two main classifications of grounds: Just Cause / Authorized Cause Peculiar cause provided in the nature of employment and terms of contract For just cause or authorized cause, the law is clear since these are provided under Articles 297, 298, and 299, respectively. For the [...]

By Atty Elvin Labor Law atty. elvin, Authorized Cause, benefits, casual, compensation, compensation and benefits, dismissal, fixed-term, Just Cause, labor, Labor Code, labor law, probationary, project, seasonal, termination 19 Comments Read more...

26 Mar

Employee Termination Notice as Part of Procedural Due Process

Employee termination notice is mandatory as part of the procedural due process in employee dismissal. As opposed to substantive due process, procedural due process pertains to the procedure involved. Hence, after determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment. (King of Kings Transport, [...]

By Atty Elvin Labor Law atty. elvin, dismissal, due process, labor, Labor Code, procedural due process, termination 12 Comments Read more...

21 Mar

Hearing to Employee is not Required for Termination if so Stipulated in Certain Forms of Employment

As a general rule, hearing is mandatory for termination of employees for just cause where it is provided in the policy or requested in writing. It is part of the procedural due process required by law. It belongs to the twin requirements doctrine. However, termination of employment not due to just cause has a different requirement. There are certain forms of employment where such hearing is not anymore required in termination as there is already a stipulation in the employment [...]

By Atty Elvin Labor Law atty. elvin, due process, employee, employer, labor, Labor Code, labor law, procedural due process 26 Comments Read more...

18 Mar

Counsel may Assist the Employee in a Hearing or Conference if the Latter Desires as part of Due Process

If a hearing or conference would be held in an employee dismissal, the employee may request to bring a counsel in such proceeding. This seems to be an optional requirement at the in- stance of the employee. In the dismissal of an employee, a hearing or conference must be held during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence [...]

By Atty Elvin Labor Law administrative hearing, atty. elvin, counsel, dismissal, due process, Hearing or Conference, Just Cause, labor, Labor Code, labor law, procedural due process, termination 13 Comments Read more...

18 Mar

Formal Hearing which is Adversarial in Nature is not Applicable in Employee Dismissal Cases

While hearing or conference is required to be held when specifically requested in writing by the employee or when so provided in the company policy, it is not intended to be in a formal type of proceeding. In the case of Nuez vs. NLRC the Supreme Court held that what the law requires is for the employer to inform the employee of the specific charges against him and to hear his side or defenses. This does not however mean a [...]

By Atty Elvin Labor Law administrative conference, administrative hearing, atty. elvin, dismissal, due process, employee, employer, hearing / conference, Hearing or Conference, Just Cause, labor, Labor Code, labor law, procedural due process 28 Comments Read more...

17 Mar

Notice to Explain (NTE): Contents and Requirements

Notice to explain or NTE is one of the requirements to complete the procedural due process in employee dismissal. In the case of King of Kings Transport, Inc. vs. Mamac, the Supreme Court (SC) said that the first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. In order to enable the [...]

By Atty Elvin Labor Law atty. elvin, dismissal, labor, Labor Code, labor law, Notice to Explain, NTE, procedural due process, termination 137 Comments Read more...

16 Mar

Notices Required in Terminating Employee

As part of procedural due process, employees to be dismissed should be notified. The first notice prior to dismissal based on just cause is known as the notice to explain or NTE as HR practitioners put it. Some call it show-cause memo or SCM. Others refer to it as show-cause order. Whatever terminology may be used to call it, the essence is that the notice should apprise the employee charged of the offense and the fact that such offense may be [...]

By Atty Elvin Labor Law atty. elvin, dismissal, due process, labor, Labor Code, procedural due process, termination 23 Comments Read more...

14 Mar

Procedural Due Process for Authorized Cause

Procedural due process is also required for termination due to authorized cause. For termination based on authorized causes, that is, retrenchment, redundancy, etc., under Article 298 of the Labor Code, as amended, the due process is deemed complied with upon the service of a written notice as follows: Notice to the employee (at least 30 days before the effectivity thereof); and Notice to the appropriate Regional Office of the Department of Labor and Employment (DOLE) at least thirty (30) days before the [...]

By Atty Elvin Labor Law atty. elvin, Authorized Cause, due process, installation of labor saving, labor, Labor Code, labor law, procedural due process, Redundancy, Retrenchment 21 Comments Read more...

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