1. What is the right to security of tenure?

The right to security of tenure means that a regular employee shall remain employed unless his or her services are terminated for just or authorized cause and after observance of procedural due process.

2. May an employer dismiss an employee? What are the grounds?

Yes. An employer may dismiss an employee on the following just causes:

a) serious misconduct;

b) willful disobedience;

c) gross and habitual neglect of duty;

d) fraud or breach of trust;

e) commission of a crime or offense against the employer, his family or representative;

f) other similar causes.

3. Are there other grounds for terminating an employment? What are they?

Yes. The other grounds are authorized causes:

a) installation of labor-saving devices;

b) redundancy;

c) retrenchment to prevent losses;

d) closure and cessation of business; and

e) disease / illness.

4. Before terminating the services of an employee, what procedure should the employer observe?

An employer shall observe procedural due process before terminating one’s employment.

5. What are the components of procedural due process?

A. In a termination for just cause, due process involves the two-notice rule:

a) A notice of intent to dismiss specifying the ground for termination, and giving said employee reasonable opportunity within which to explain his or her side;

b) A hearing or conference where the employee is given opportunity to respond to the charge, present evidence or rebut the evidence presented against him or her;

c) A notice of dismissal indicating that upon due consideration of all the circumstances, grounds have been established to justify termination.

B. In a termination for an authorized cause, due process means a written notice of dismissal to the employee specifying the grounds at least 30 days before the date of termination. A copy of the notice shall also be furnished the Regional Office of the Department of Labor and Employment (DOLE) where the employer is located.

6. What is the sanction if the employer failed to observe procedural due process in cases of legal and authorized termination?

In cases of termination for just causes, the employee is entitled to payment of indemnity or nominal damages in a sum of not more than 30,000 pesos (Agabon vs. NLRC, 442 SCRA 573); in case of termination for authorized causes, 50,000 pesos (Jaka Food Processing vs. Darwin Pacot, 454 SCRA 119).

7. May an employee question the legality of his or her dismissal?

Yes. The legality of a dismissal may be questioned before the Labor Arbiter of a Regional Arbitration Branch of the National Labor Relations Commission (NLRC), through a complaint for illegal dismissal. In establishments with a collective bargaining agreement (CBA), the dismissal may be questioned through the grievance machinery established under the CBA. If the complaint is not resolved at this level, it may be submitted to voluntary arbitration.

8. In cases of illegal dismissal, who has the duty of proving that the dismissal is valid?

The employer.

9. Suppose the employer denies dismissing the employee, who has the duty to prove that the dismissal is without valid cause?

The employee must elaborate, support or substantiate his or her complaint that he or she was dismissed without valid cause (Ledesma, Jr. vs. NLRC, 537 SCRA 358, October 19, 2007).

10. On what grounds may an employee question his or her dismissal?

An employee may question his or her dismissal based on substantive or procedural grounds.

The substantive aspect pertains to the absence of a just or authorized cause supporting the dismissal.

The procedural aspect refers to the failure of the employer to give the employee the opportunity to explain his or her side.

11. What are the rights afforded to an unjustly dismissed employee?

An employee who is dismissed without just cause is entitled to any or all of the following:

a) reinstatement without loss of seniority rights;

b) in lieu of reinstatement, an employee may be given separation pay of one month pay for every year of service (Golden Ace Builders, et. al vs. Jose Talde, May 5, 2010, GR No. 187200);

c) full backwages, inclusive of allowances and other benefits or their monetary equivalent from the time compensation was withheld up to the time of reinstatement;

d) damages if the dismissal was done in bad faith (Aurora Land Project Corp. vs NLRC, 266 SCRA 48).

12. What is reinstatement?

Reinstatement means restoration of the employee to the position from which he or she has been unjustly removed.

Reinstatement without loss of seniority rights means that the employee, upon reinstatement, should be treated in matter involving seniority and continuity of employment as though he or she had not been dismissed from work.

When a Labor Arbiter rules for an illegal dismissal, reinstatement is immediately executory even pending appeal by the employer (Article 223 of the Labor Code, as amended).

13. In what forms may reinstatement pending appeal be effected?

Reinstatement pending appeal may be actual or by payroll, at the option of the employer.

14. What is meant by full backwages?

Full backwages refer to all compensations, including allowances and other benefits with monetary equivalent that should have been earned by the employee but was not collected by him or her because of unjust dismissal. It includes all the amounts he or she could have earned starting from the date of dismissal up to the time of reinstatement.

15. What is separation pay?

In termination for authorized causes, separation pay is the amount given to an employee terminated due to installation of labor-saving devices, redundancy, retrenchment, closure or cessation of business or incurable disease.

Separation pay may also be granted to an illegally dismissed employee in lieu of reinstatement.

16. How much is the separation pay?

In cases of installation of labor-saving devices or redundancy, the employee is entitled to receive the equivalent of one month pay or one month for every year of service, whichever is higher.

In cases of retrenchment, closure or cessation of business or incurable disease, the employee is entitled to receive the equivalent of one month pay or one-half month pay for every year of service, whichever is higher.

In case of separation pay in lieu of reinstatement, the employee is entitled to receive the equivalent of one month pay for every year of service.

17. Is proof of financial losses necessary to justify retrenchment?

Yes. Proof of actual or imminent financial losses that are substantive in character must be proven by the employer to justify retrenchment (Lopez Sugar Central vs. NLRC, 189 SCRA 179).

18. Are there other conditions before an employee may be dismissed on the ground of redundancy?

Yes. It must be shown that there is:

a) Good faith in abolishing redundant position; and

b) Fair and reasonable criteria in selecting employees to be dismissed, such as but not limited to less preferred status (e.g. temporary employee), efficiency and seniority (Asian Alcohol Corp. vs. NLRC, 305 SCRA 416);

c) A one-month prior notice is given to the employee and DOLE Regional Office as prescribed by law.

19. May the services of an employee be terminated due to disease?

Yes. The employer may terminate employment on ground of disease only upon the issuance of a certification by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of six months even with proper medical treatment.

20. What is constructive dismissal?

Constructive dismissal refers to an involuntary resignation resorted to when continued employment becomes impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to an employee or an unwarranted transfer or demotion of a employee, or other unjustified action prejudicial to the employee. The employer has to prove that such managerial actions do not constitute constructive dismissal (Blue Dairy Corp. vs. NLRC, 314 SCRA 401)

21. May an employee be placed on floating status?

Yes, provided it is permitted under circumstances for a period of not more than six (6) months. Beyond this period, floating status becomes constructive dismissal which entitles the employee to separation pay (Phil. Industrial Security Agency Corp. vs. Virgilio Dapiton and NLRC, 320 SCRA 124)

22. When an employee resigned voluntarily, is he or she entitled to separation pay?

No. An employee is not entitled to separation pay when he or she resigns voluntarily, unless it is a company practice or provided in the CBA (Hanford Philippines Inc. vs. Shirley Joseph, 454 SCRA 786, March 31, 2005).

23. Are quitclaims valid?

Yes, provided that these are voluntarily signed and the consideration is reasonable and is not against the law or public policy. (More Maritime Agencies vs. NLRC, 307 SCRA 189)

Quitclaims entered into by union officers and some members do not bind those who did not sign it (Liana’s Supermarket vs. NLRC, 257 SCRA 186).