Termination of Employment IRR of the Labor Code

Termination of employment provisions under Article 297 [formerly 282] of the Labor Code, as amended provide the grounds for valid dismissal.

The DOLE issued the new IRR for this the highlights of which are discussed by Atty. Villanueva in The Labor Code 2018 Edition (pp. 281-285) as follows:

The Department of Labor and Employment issued D.O. 147-15, Series of 2015 amending the Rules and Regulations of Book VI of the Labor Code.

One of the salient points of D.O. 147-15 is the limitation made on analogous cause stating that no act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies.

Article 297 pertains to the just cause for dismissal in contrast with the authorized cause in Article 298.

For termination of employment due to an authorized cause, the employee is dismissed because the management exercised its business prerogative, not because the employee was at fault.

The following should be considered in terminating the services of employees:

(1) 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. Reasonable opportunity under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense.

This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees.

A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.

(2) 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 and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

(3) 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.

The Labor Code enumerates the ground for dismissal of employees under Article 297 [formerly Article 282]. The enumeration is general in nature which means it does not identify the particular acts that will be just cause for employee’s dismissal. In such general enumeration, the law provides other grounds similar to each in the list referred to as “analogous cause.” What is analogous to those enumerated is often a contested issue.

Analogous causes must have an element similar to those found in the specific just cause enumerated under Article 282 [now Article 296 per Department Advisory 01, Series of 2015. Get an updated Labor Code here] of the 284 The Labor Code of the Philippines Labor Code. (International Rice Research Institute vs. NLRC, G.R. No. 97239 May 12, 1993).

The former Department of Labor and Employment Secretary Rosalinda Dimapilis-Baldoz on September 7, 2015 issued Rules clarifying the application of just and authorized causes of termination of employment under Articles 297-299 of the Labor Code, as amended, through Department Order No. 147-15, Series of 2015, entitled “Amending the Implementing Rules and Regulations of Book VI of the Labor Code of the Philippines, as Amended” D.O. 147-15 expressly provides for the specific standards in applying the just and authorized causes and specifically outlines the due process of termination of employment.

The Rules expressly provides as well that for acts or omissions to be considered as analogous causes, the same must be expressly specified in company rules and regulations or policies. This regulation requires those analogous causes to be expressed, for instance, in the company Code of Conduct or Code of Discipline. For example, offenses like theft of co-employee’s property is analogous cause.

The Supreme Court ruled in one case that Theft committed against a co-employee is considered as a case analogous to serious misconduct, for which the penalty of dismissal from service may be meted out to the erring employee. (Cosmos Bottling Corporation vs. Fermin, G.R. No. 193676, June 20, 2012) Another thing, employers may regulate the use of Facebook, personal email, and other social media accounts.

If these would be regulated with implication on administrative charges, they may fall within the category of Post Employment Retirement from the Service 285 analogous cause thus, should be expressed in the company’s Code of Conduct or Discipline.