CONDUCTING ADMINISTRATIVE INVESTIGATION AND DISMISSAL

OF EMPLOYEES

MANAGEMENT RIGHTS

Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of the workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of work. ( San Miguel Brewery Sales vs. Ople, G.R. No. 53615, Feb. 08, 1989.)

Every business enterprise endeavors to increase its profits . In the process, it may adopt or devise means designed towards that goal. Even as the law is solicitous of the welfare of the employees, it must also protect the right of an employer to exercise what are clearly management prerogatives. The freewill of management to conduct its own business affairs to achieve its purpose cannot be denied. (San Miguel Brewery vs. Ople, G.R. No. 53615, Feb. 1989.)

Prepared by : Atty. Manolette F.E. Dinsay UP School of Labor and Relations

SECURITY OF TENURE

ARTICLE. 279.

SECURITY OF TENURE - IN CASES OF REGULAR EMPLOYMENT, THE EMPLOYER SHALL NOT TERMINATE THE SERVICES OF AN EMPLOYEE EXCEPT FOR A JUST CAUSE OR WHEN AUTHORIZED BY THIS TITLE. AN EMPLOYEE WHO IS UNJUSTLY DISMISSED FROM WORK SHALL BE ENTITLED TO REINSTATEMENT WITHOUT LOSS OF SENIORITY RIGHTS AND OTHER PRIVILEGES AND TO HIS FULL BACKWAGES, INCLUSIVE OF ALLOWANCES, AND TO HIS OTHER BENEFITS OR THEIR MONETARY EQUIVALENT COMPUTED FROM THE TIME HIS COMPENSATION WAS WITHHELD FROM HIM UP TO THE TIME OF HIS ACTUAL REINSTATEMENT.

Prepared by: Manolette F.E. DinsayU.P. School of Labor and Industrial Relations

MANAGEMENT PREROGATIVES*(Now)

Prepared by : Atty. Manolette F.E. Dinsay UP School of Labor & Industrial Relations

REASONS WHY MANAGEMENT LOSES MAJORITY OF LABOR CASES

SOCIAL JUSTICE (Social Imbalance and Adverse Economic Condition)

ART. 4 OF THE LABOR CODE

MANAGEMENT’S FAILURE TO DOCUMENT

MANAGEMENT’S FAILURE TO OBSERVE DUE PROCESS

MANAGEMENT’S IMPOSITION OF TOO HARSH PENALTIES

– M.F.E. Dinsay U.P. School of Labor & Industrial Relations

DIAGRAM OF DUE PROCESS IN THE WORKPLACEDIAGRAM OF DUE PROCESS IN THE WORKPLACE

INFRACTION

Prepared by: Atty. Manlolette F.E. DinsayUP School of Labor & Industrial Relation

SHOW CAUSE MEMO

ANSWERADMINISTRATIVEINVESTIGATION

NOTICE OF DISCIPLINARY

ACTION

1st NOTICE HEARING 2nd NOTICE

INQUIRY

-Know the facts-What, When, Where, Who, why and how

- Prepare a checklist-the checklist to the notice to explain

DUE PROCESS IN DISCIPLINE

STEP 1.

- A WRITTEN NOTICE (SHOW CAUSE MEMORANDUM) served on the employee specifying the offenses committed and giving to employee reasonable opportunity within which to explain his side through a written explanation;

STEP 2.

- WRITTEN EXPLANATION submitted by the employee detailing why he should not be penalized/disciplined;

STEP 3.- A HEARING or CONFERENCE

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 presented against him; and

STEP 4. - A WRITTEN NOTICE OF THE

DISCIPLINARY ACTION (EITHER REPRIMAND, SUSPENSION, DEMOTION OR TERMINATION) served on the employee indicating that upon due consideration of the circumstance, grounds have been established to justify a penalty.

STEP 5.

- SERVICE OF NOTICE to the employee IN PERSON. If employee cannot be located, service must be made to his LAST KNOWN ADDRESS through Registered Mail (Postal Service) with Return Card.

INFRACTION

Prepared by: Atty. Manlolette F.E. Dinsay UP School of Labor & Industrial Relation

SHOW CAUSE MEMO

ANSWERADMINISTRATIVEINVESTIGATION

NOTICE OF DISCIPLINARY

ACTION

1) What to do if the employee refuses to receive or receives but refuses to sign

2) What to do if employee is on AWOL ?

3) When can you prevent i v e l y suspend an employee ?

1) Required form of E’s answer

2) Number of hours

3) What to do if E refuses to answer ?

4) What to do if E offers to resign?

1) What to do i f E refuses to appear

2) Is hearing dispensable ?

EVALUATION and

RECOMMENDATIONOF MANAGER TO BE

SENT TOHRMD/LEGAL FOR

FINAL REVEIWAND PREPARATION

OF DECISION

1st NOTICE HEARING 2nd NOTICE

VALID DISCIPLINARY = OFFENSE + DUE + PROPER ACTION PROCESS PENALTY

- Must be proven - Observe the 2 notice - Severity of the discipline as fact rule must fit the severity of the offense or misbehavior

- Burden of proof 1st NOTICE rests on the employer - Notice to Explain - Must be consistently applied.

must specify the - Discrimination and favoritism offense committed must be avoided. 2nd NOTICE - Consider employee’s

- Notice of Decision employment record must clearly state the reason therefor

M.F.E. Dinsay U.P. School of Labor & Industrial Relations

GENERAL CAUSES OF TERMINATION

1. The Just Causes of Termination

(Art. 282 Labor Code)

2. The Authorized Causes of Termination

(Art. 283 Labor Code)

3. Disease as a Ground for Termination

(Art. 284 Labor Code)

Prepared by : Atty. Manolette F.E. Dinsay UP School of Labor & Industrial Relations

JUST CAUSES OF TERMINATIONJUST CAUSES OF TERMINATION

ART. 282. Termination by Employer - An employer may terminate an employment for any of the following just causes.

a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

b) Gross and habitual neglect by the employee of his duties;

c) Fraud and willful breach by the employee of the trust reposed in him by his employer or dully authorized representative;

d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and

e) Other causes analogous to the foregoing.

Prepared by: Atty. Manolette F.E. Dinsay UP School of Labor & Industrial Realtions

JUST CAUSES OF TERMINATIONJUST CAUSES OF TERMINATIONEXPLAINEDEXPLAINED

1. SERIOUS MISCONDUCT - is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character and implies wrongful intent and not mere error in judgment. The conduct to be serious, must be of such grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must, nevertheless, be in connection with the employee’s work to constitute a just cause for his separation.

2. WILLFUL DISOBEDIENCE In order that the willful disobedience by the employee may constitute a just cause for his dismissal, the orders, regulations, or instructions of the employer or representative must be: (1) reasonable and lawful; (2) sufficiently known to the employee, and (3) in connection with the duties which the employee has been engaged to be discharged.

3. NEGLECT OF DUTIES

The employer cannot rightfully discharge an employee for trivial and unimportant acts of negligence. It is difficult, however to lay down any general rule as guide on the question whether, in a particular case, the act of the negligence is gross or not. Generally, gross negligence means an absence of that diligence that an ordinarily prudent man would use in his own affairs. (DOLE MANUAL, SEC.4343. 01(2))

4. FRAUD OF WILLFUL BREACH OF TRUST AND CONFIDENCE

To constitute a just cause for dismissal, the fraud must be committed against the employer or his representative and in connection with the employees' work. Furthermore, since fraud implies willfulness or wrongful intent, the innocent non-disclosure of facts by the employee to the employer will not constitute a just cause for dismissal. (DOLE MANUAL, SEC. 4343.01 (3))

5. COMMISSION OF CRIME OR OFFENSE

Another just cause for the termination of employment is the employee's commission of crime or offense against the person of his employer or against any immediate member of the employer's family. They are the spouse, ascendants, descendants, or legitimate, natural, or adopted brothers or sisters of the employer of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree. The conviction of an employee in a criminal case is not indispensable to warrant his dismissal and the fact that a criminal complaint has been dismissed conclusive upon the labor tribunal.

AUTHORIZED CAUSES OF TERMINATION

Art. 283. Closure of establishment and reduction of personnel. - The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1)month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.

Prepared by: Atty. Manolette F.E. Dinsay

UP School of Labor & Relations

AUTHORIZED CAUSES OF TERMINATION

Art. 284. Disease as ground for termination. - An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, that he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one(1) whole year.

Prepared by: Atty. Manolette F.E. Dinsay UP School of Labor & Industrial Realtions

CONSEQUENCES OF TERMINATIONCONSEQUENCES OF TERMINATION

DECISION TO TERMINATE

Legal RequirementsArt. III, Sec. 1, 1987 Constitution

Art. XIII, Sec. 3, 1987 ConstitutionLabor Code of the Phils. P.D. 442

Substantive DueProcess

Due Process inThe Workplace

Consequences of LAWFUL TERMINATION

Art. 282 LCP (Just Causes)

Art. 283 LCP (Authorized Causes)

Art. 284 LCP (Diseases)

OTHER CAUSES

CBA (Union Security Clauses)

R.A. 7642 (Retirement Law)

Company Policy/Practices

Implementing Rules of Book V of the

Labor Code

( 2-Notice Rules )

Sec. 2 Notice of Dismissal

Sec. 3&4 Preventive Suspension

Sec. 5 Answer & Hearing

Sec. 6 Notice of Decision to Dismiss

Prepared by: Atty. Manolette F.E. Dinsay

UP School of Labor & Industrial Relations

GENERAL RULEGENERAL RULE

No Separation Pay No Separation Pay

(IR, Book VI, Rule 1, Sec. 7)(IR, Book VI, Rule 1, Sec. 7)

EXCEPTIONS: - For Authorized Causes

- Company Policy or CBA

- Compassion (Based on Equity

Dismissal w/o Just Cause Dismissal w/o Due Process

Consequences ofUNLAWFUL TERMINATION

General Rule:

-Reinstatement w/o loss of Seniority Rights

-Backwages (How computed?)

-Damages/Indemnity (if done with bad

or malice

Exceptions:

-Doctrine of strained relationship

-Abolition of position in good faith

-Closure/Cessation of Operation

N.B. Ruben Serrano vs. NLRC and Isetann Department Store

(G.R. No. 11704, January 27, 2000)Prepared by: Atty. Manlolette F.E. Dinsay UP School of Labor & Industrial Relation

GUIDELINES IN ADMINISTRATIVE INVESTIGATION

Check if all the necessary documents are available. e.g. show cause memo, answer, audit findings, 201 File etc.

Check if witnesses and other persons involved in the investigation are present. Accomplish the attendance sheet.

Investigator should state the purpose of the investigation. Explain why the person is being investigated. Advise the employee and witnesses to be truthful and candid in their answers. Remind them that lying during an investigation is an offense.

Investigator should inform the employee concerned that the proceeding is being taped in order to preserve its integrity. Seek his consent. Read the names of the attendees including the witnesses.

Ask employee to affirm and confirm his answer. Inquire whether or not employee wishes to amend or delete anything in the written answer or explanation.

Remind the employee concerned and the witnesses to verbalize their answers to the questions profounded by the investigator. Tell them their body language and gestures cannot be captured in the tape recorder or CD player.

•Explain the nature of the offense and the reason why the person is being investigated. If necessary, discuss the facts and circumstances constituting the offense. This may be done by simply reading the salient portions of the show-cause memo.

•If the employee admits fault, ask why he did the offense. For the record, ask the employee if he is aware of the Code of Discipline or the SOPs of the company. If answer is yes, ask why he still committed the infraction. If he says no, show him proof that he was informed of the Code of Discipline and SOP that he has violated. WARNING : BE SURE OF YOUR DOCUMENTATION BEFORE YOU ASK THIS QUESTION. IT IS NOT SELDOM THAT EMPLOYEES DENY OR PRETEND TO HAVE NO RECOLLECTION WHEN UNDER INVESTIGATION. Lack of knowledge of a policy or SOP may be a ground to mitigate a penalty or even exculpate an employee. Your supervisors/managers will have a lot of explaining to do if it is true that employee is not aware of the policy/SOP in question.

•Do not make conclusive remarks which might be misconstrued as a pre-judgment of the case. This might be objected to by the respondent or his counsel.

•Do not mislead, intimidate or otherwise harass the employee or witnesses. It removes the essential element of voluntariness in their answers or admissions. Absent this essential element, the answers will have little, if not, zero probative value.

•Know whether or not the employee has committed the same or similar offense in the past. Look into past disciplinary actions where he may have been penalized already. A repeat will merit harsher penalty as it shows that the first penalty did not improve him. First offense is usually treated with lighter penalty since the disciplinary action should focus on correction or rehabilitation of the offender.

If there is an audit finding, show it to the employee and give him a chance to comment or clarify matters. Be sure the persons who drew up the audit findings are prepared to answer or defend it. If the employee disputes the findings, ask him why he thinks so or what aspects of the audit findings does he agree with.

Take note and consider the comments or questions raised by the employee during the AI. These are important because the same issues are likely to be raised by the employee should he decide to pursue an illegal termination case.

Do not argue with the employee or witnesses. Remember an investigation is a fact finding matter not a debate.

If the employee is placed under preventive suspension, be sure to finish the AI within the period of suspension. HR must monitor this closely.

Before the end of the investigation, ask the employee if there is anything else that he might want to say in the nature of a closing statement.

Inform the employee that the case will be thoroughly evaluated and that he will be advised of the decision in due time.

Thank the employee and the witnesses for their attendance and cooperation.

- Attendance Sheet

- Writing Pad

- Tape Recorder and tapes

- Employee’s 201 File

- All documents including logbooks, audit findings or objects that may assist or be helpful in the investigation

Prepared by : Atty. Manolette F.E. Dinsay

U.P. School of Labor and Industrial Relations

ATTENDANCE SHEET

Administrative Investigation of Martin NevadaAccounting Clerk, XY & Z Corporation, North Reclamation Area

October 2, 2001, 3:00 p.m.

Name Position Signature ____________________________________________________________________________________________________________

___________ ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ _________

Prepared by : Atty. Manolette F.E. Dinsay

U.P. School of Labor and Industrial Relations

To : Allan Sering From : Mr. Calwyn Sheridan

– VP Human Resources

Subject : Unauthorized strike

Please explain what happened and what you did on April 15, 1998. Thank you.

For your strict compliance

Mr. CALWYN SHERIDAN

cc : 201File

Problem No. 1

Myth, a staff writer, had been absent from her work for seven (7) days already. There is no sign that she is returning to work because an inquiry made by her superior indicated that she left for her hometown in Tagkawayan, Quezon Province. This is the third time that Myth had gone on absence without official leave (AWOL) within a period of two (2) months although her first and second unauthorized leaves were for 2 days and 3 days respectively. She wasn’t issued a notice to explain on her previous AWOLs thus creating an impression among her co-employees that she is a “sacred cow” in the company. Except for her AWOL, Myth is an excellent employee whose skills are unmatched in the company and recognized as such in the industry. As a matter of fact, she received at least two juicy offers for employment from a competing network. She is known to have a no-nonsense attitude towards her work and is generally easy to get along with.

Sensing something unusual, her superior inquired from her officemates as regards any liability or accountability that Myth may have incurred from them or from the company. Irene informed him that Myth borrowed from her P5,000 a day before she went missing. Ligaya also said that Myth has not returned the company’s notebook computer despite her promise to do so.

If you were the superior how would you handle this problem?

Prepare a notice to explain

Conduct an administrative investigation/conference

Prepare a decision

Problem No. 2

Ronnie has been employed with the network for twenty two years as a driver. On March 3, 2004, at around 11 o’clock in the evening, after a location shooting in Indang, Cavite, he met an accident which badly damaged the company vehicle including some camera and equipment inside. Luckily he was unscathed except for minor bruises in the forehead due to the smashed windshield. His 2 passengers had more serious injuries which were not life-threatening. Total cost of damage and injury was estimated at P 1.5 million.

During an inquiry conducted by his superior, Alexander, it was established that Ronnie was driving with an expired license. He smelled of liquor at the time of the accident which

circumstance was reflected in the incident report filed by the traffic policemen. While he admitted that his license was expired, he vehemently denied that he was drunk or under the influence of liquor at the time of the accident. His passengers alleged that at the time of the accident, Ronnie was driving between 90 to 100 kilometers per hour or 20 kilometers faster than the allowable speed limit set by the company. They testified that they could not say with certainty whether or not Ronnie was under the influence of liquor at the time of the accident although they are sure that he was not drunk.

This is Ronnie’s first major infraction of the company’s policy which is why he pleads for mercy and a second chance to prove his worth.

If you were Ronnie’s superior, how would you handle this problem?

Prepare a notice to explain