THE LAW AND JURISPRUDENCE ON (1) REGULAR, CASUAL AND PROBATIONARY EMPLOYMENT AND (2) TERMINATION OF EMPLOYMENT

THE LAW AND JURISPRUDENCE ON REGULAR, CASUAL AND PROBATIONARY EMPLOYMENT

ARTICLE 280. Regular and Casual Employment. ² The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exist.

The primary standard, therefore, of determining a regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work

performed and its relation to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists. What determines whether a certain employment is regular or casual is not the will and word of the employer, to which the desperate worker often accedes, much less the procedure of hiring the employee or the manner of paying his salary. It is the nature of the activities performed in relation to the particular business or trade considering all circumstances, and in some cases the length of time of its performance and its continued existence. (Randy Almeda, vs. Asahi Glass Phil., Inc., G.R. No. 177785, September 3, 2008)

While the Constitution recognizes the primacy of labor, it also recognizes the critical role of private enterprise in nation-building and the prerogatives of management. A contract of perpetual employment deprives management of its prerogative to decide whom to hire, fire and promote, and renders inutile the basic precepts of labor relations. While management may validly waive it prerogatives, such waiver should not be contrary to law, public order, public policy, morals or good customs. An absolute and unqualified employment for life in the mold of petitioner's concept of perpetual employment is contrary to public policy and good customs, as it unjustly forbids the employer from terminating the services of an employee despite the existence of a just or valid cause. It likewise compels the employer to retain an employee despite the attainment of the statutory retirement age, even if the employee has became a "non-performing asset" or, worse, a liability to the employer. (Ronilo Sorreda vs. Cambridge Electronics Corporation, G.R. No. 172927, February 11, 2010)

The test for distinguishing a "project employee" from a "regular employee" is whether or not he has been assigned to carry out a "specific project or undertaking," with the duration and scope of his engagement specified at the time

his service is contracted. Generally, length of service provides a fair yardstick for determining when an employee initially hired on a temporary basis becomes a permanent one, entitled to the security and benefits of regularization. But this standard will not be fair, if applied to the construction industry, simply because construction firms cannot guarantee work and funding for its payrolls beyond the life of each project. And getting projects is not a matter of course. Construction companies have no control over the decisions and resources of project proponents or owners. There is no construction company that does not wish it has such control but the reality, understood by construction workers, is that work depended on decisions and developments over which construction companies have no say. For this reason, the Supreme Court held in Caseres v. Universal Robina Sugar Milling Corporation that the repeated and successive rehiring of project employees do not qualify them as regular employees, as length of service is not the controlling determinant of the employment tenure of a project employee, but whether the employment has been fixed for a specific project or undertaking, its completion has been determined at the time of the engagement of the employee. However, DOLE Order 19 required employers to submit a report of termination of employees every completion of construction project. (William Uy Construction Corp. vs. Jorge R. Trinidad, G.R. No. 183250, March 12, 2010)

A project employee is defined under Article 280 of the Labor Code as one whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season. If the termination is brought about by the completion of the contract or phase thereof, no prior notice is required. Cioco, Jr. v. C.E. Construction Corporation explained that this is because completion of the work or project automatically terminates the employment, in which case, the employer is, under the law, only obliged to render a report to the DOLE on the termination of the employment. Hence, prior or advance notice of termination is not part of procedural due process if the termination is brought about by the completion of the contract or phase thereof for which the employee was engaged. Employer, therefore, did not violate any requirement of procedural due process by failing to give employees advance notice

employees who are members of a "work pool" from which a company draws workers for deployment to its different projects do not become regular employees by reason of that fact alone. No. No. Consunji. (Judy O.M. 176748. 169170. they can remain as project employees regardless of the number of years they work. Inc. 2010) ARTICLE 281. ² Probationary employment shall not exceed six (6) months from the date the employee started working. L. In sum. 20) requires employers to submit a report of an employee's termination to the nearest public employment office everytime the employment is terminated due to the completion of a project. Moreover. August 9. Their rehiring is only a natural consequence of the fact that experienced construction workers are preferred. Probationary employment. The Court has consistently held that members of a "work pool" can either be project employees or regular employees. vs. Camus Engineering Corporation. Length of service is not a controlling factor in determining the nature of one's employment. 2010) A project employee is assigned to a project which begins and ends at determined or determinable times. The principal test used to determine whether employees are project employees is whether or not the employees were assigned to carry out a specific project or undertaking. vs. (D.. G. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in . G.M. employees are not entitled to nominal damages for lack of advance notice of their termination. unless it is covered by an apprenticeship agreement stipulating a longer period. In fact. Antonio Gobres et al. 19 (as well as the old Policy Instructions No. Department Order No.of their termination. absent the requirement of prior notice of termination when the termination is brought about by the completion of the contract or phase thereof for which the worker was hired. the duration or scope of which was specified at the time the employees were engaged for that project. Dacuital et al. September 1. Employees who work under different project employment contracts for several years do not automatically become regular employees.R.R.

the employer must inform the employee of the standards for which his employment may be considered for regularization. the dismissal of the employee was declared illegal by the Court because the employer did not prove that the employee was properly apprised of the standards . Under Article 281 of the Labor Code. may hire an employee on a probationary basis in order to determine his fitness to perform work. Article 13 of the Civil Code. unless covered by an apprenticeship agreement. which provides that the months which are not designated by their names shall be understood as consisting of thirty (30) days each. An employee who is allowed to work after a probationary period shall be considered a regular employee. the first day shall be excluded and the last day included. NLRC. Applying Article 13 of the Civil Code. As clearly provided for in the last paragraph of Article 13. An employer. 2004. the period of one hundred eighty (180) days.) It can be gleaned from Article 281 of the Labor Code that there are two grounds to legally terminate a probationary employee. This is in conformity with paragraph one. shall not exceed six (6) months from the date the employee started working. 148738. (Mitsubishi Motors Philippines Corporation vs. in computing a period. in the exercise of its management prerogative. The number of months in the probationary period.accordance with reasonable standards made known by the employer to the employee at the time of his engagement. hence. Chrysler Philippines Labor Union. It may be done either: a) for a just cause or b) when employee fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the start of the employment. the probationary period of six (6) months consists of one hundred eighty (180) days. six (6). the rudiments of due process demand that an employee should be apprised beforehand of the conditions of his employment and the basis for his advancement. should then be multiplied by the number of days within a month. June 29. The employee's services may be terminated for just cause or for his failure to qualify as a regular employee based on reasonable standards made known to him. In Secon Philippines Ltd. v. No.R. However. thirty (30). G. Such probationary period.

together with the just and authorized causes for termination of employment the Labor Code expressly provides. Jr.R. management is given the widest opportunity during the probationary period to reject hirees who fail to meet its own adopted but reasonable standards. the school may impose reasonably stricter attendance or report compliance records on . For example. The Labor Code is supplemented with respect to the period of probation by special rules found in the Manual of Regulations for Private Schools.. Mateo C. the probationary period for academic personnel shall not be more than three (3) consecutive years of satisfactory service for those in the elementary and secondary levels. April 13. 149371. On the matter of probationary period. vs. G. No. These standards.´ The provision on employment on probationary status under the Labor Code is a primary example of the fine balancing of interests between labor and management that the Code has institutionalized pursuant to the underlying intent of the Constitution. employment on probationary status affords management the chance to fully scrutinize the true worth of hired personnel before the full force of the security of tenure guarantee of the Constitution comes into play. six (6) consecutive regular semesters of satisfactory service for those in the tertiary level. naturally. Agustin. Inc. are the grounds available to terminate the employment of a teacher on probationary status.) A reality we have to face in the consideration of employment on probationary status of teaching personnel is that they are not governed purely by the Labor Code. the employer could not show that the employee failed to meet such standards. 2005. On the one hand. (Aberdeen Court. Based on the standards set at the start of the probationary period. Section 92 of these regulations provides: ³Subject in all instances to compliance with the Department and school requirements.of the job at the time of his engagement and. and nine (9) consecutive trimesters of satisfactory service for those in the tertiary level where collegiate courses are offered on a trimester basis.

is that the school should show ² as a matter of due process ² how these standards have been applied. of the basic rule in employee dismissal that the employer carries the burden of justifying a dismissal. Given the clear constitutional and statutory intents. Article 281 should assume primacy and the fixed-period character of the contract must give way. these standards should be made known to the teachers on probationary status at the start of their probationary period. This is effectively the second notice in a dismissal situation that the law requires as a due process guarantee supporting the security of tenure provision. . Of critical importance in invoking a failure to meet the probationary standards. Under the terms of the Labor Code. Labor. or at the very least at the start of the semester or the trimester during which the probationary standards are to be applied. aside from the usual standards applicable to employees after they achieve permanent status. The school. the same just and authorizes causes for dismissal under the Labor Code apply to probationary teachers. cannot forget that its system of fixed-term contract is a system that operates during the probationary period and for this reason is subject to the terms of Article 281 of the Labor Code. and reject a probationary teacher for failing in this regard. The inevitable effect of course is to wreck the scheme that the Constitution and the Labor Code established to balance relationships between labor and management. is given the protection during the probationary period of knowing the company standards the new hires have to meet during the probationary period.teachers on probation. although the same attendance or compliance record may not be required for a teacher already on permanent status. we cannot but conclude that in a situation where the probationary status overlaps with a fixed-term contract not specifically used for the fixed term it offers. however. and is in furtherance. and to be judged on the basis of these standards. the requirements of this Article on probationary status would be fully negated as the school may freely choose not to renew contracts simply because their terms have expired. for its part. At the same time. nothing is illegitimate in defining the school-teacher relationship in this manner. Unless this reconciliation is made. Termination of employment on this basis is an authorized cause under the Labor Code. too. These rules ensure compliance with the limited security of tenure guarantee the law extends to probationary employees. so that they may be the first to be laid-off if the school does not have enough students for a given semester or trimester. 44 To be sure.

G. leads to no probationary status implications as she was never employed on probationary basis. under the circumstances. ARTICLE 282. may be contracted for a period of one year to temporarily take the place of a permanent teacher on a one-year study leave. vs. National Labor Relations Commission.R. which is applied to and comprehends "closed shop. the Supreme Court laid down the grounds for which an employee may be validly terminated. Termination by employer. The expiration of the replacement teacher's contracted term. for example. ." "union shop." or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. Inc." "maintenance of membership. (b) Gross and habitual neglect by the employee of his duties. (Yolanda M.A replacement teacher. (2) authorized causes under Article 283. Another cause for termination is dismissal from employment due to the enforcement of the union security clause in the CBA. AMA Computer College ± Paranaque City. thus: Under the Labor Code. an employee may be validly terminated on the following grounds: (1) just causes under Article 282. (3) termination due to disease under Article 284. Inc. 183572. April 13. and (4) termination by the employee or resignation under Art. 2010) THE LAW AND JURISPRUDENCE ON TERMINATION OF EMPLOYMENT TERMINATION OF EMPLOYENT In Alabang Country Club. ² 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. v. No. 285. Mercado et al. "Union security" is a generic term.. her employment is for a specific purpose with particular focus on the term and with every intent to end her teaching relationship with the school upon expiration of this term.

2010) While as a general rule. No. 164860. NLRC. v. Hermie G. the succeeding case of Toyota Motor Phils. the employer has the burden of proving the lawful cause sustaining the dismissal of the employee. No. Substantial evidence is that amount of relevant evidence as a reasonable mind might accept as adequate to support a conclusion. vs. 2010) When there is no showing of a clear. (Caltex (Philippines). even if other minds. February 2. G. (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 legal cause for the termination of employment. (Hilton Heavy Equipment Corporation vs.(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative. the law considers the matter a case of illegal dismissal and the burden is on the employer to prove that the termination was for a valid or authorized cause. might conceivably opine otherwise.R. equally reasonable. the Court has allowed in numerous cases the grant of separation pay or some other financial assistance to an employee dismissed for just causes on the basis of equity.R. Corp. the Supreme Court stated that separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. and (e) Other causes analogous to the foregoing. NLRC reaffirmed the general rule that separation pay shall be . However. The quantum of proof which the employer must discharge is substantial evidence. In the leading case of Philippine Long Distance Telephone Co. INC. In an unlawful dismissal case. Agad and Caltex United Supervisors¶ Association. Dy. Workers Association v. 162017. valid. The employer must affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause. an employee who has been dismissed for any of the just causes enumerated under Article 282 of the Labor Code is not entitled to separation pay. April 23. G. Ananias P.

it may terminate an employee for a just cause. June 18. G. While an employer has its own interest to protect. the Supreme Court reiterated the Toyota ruling and maintained that labor adjudicatory officials and the Court of Appeals must demur the award of separation pay based on social justice when an employee's dismissal is based on serious misconduct or willful disobedience. in the execution of the said prerogative. and pursuant thereto. the scales of justice must be tilted in favor of the latter. or commission of a crime against the person of the employer or his immediate family ² grounds under Art. Indeed. willful disobedience. however. fraud or willful breach of trust. June 16. commission of a crime against the employer or his family. NLRC. 2010) Our Courts are not unmindful of the rule in labor cases that the employer has the burden of proving that the termination was for a valid or authorized cause. vs. Marlyn Cuevas.allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct. 169523. 2010) They must be most judicious and circumspect in awarding separation pay or financial assistance as the constitutional policy to provide full protection to labor is not meant to be an instrument to oppress the employers. 282 of the Labor Code that sanction dismissals of employees. G. but his very livelihood. No.R. it is likewise incumbent upon the employees that they should first . NLM. (Lima Land. The employer must affirmatively show rationally adequate evidence that the dismissal was for justifiable cause. (BPI vs. The employer should bear in mind that. gross and habitual neglect of duty. 179801. Inc. such prerogative to dismiss or lay off an employee must be exercised without abuse of discretion. gross and habitual neglect of duty. Its implementation should be tempered with compassion and understanding. his very breadbasket. or those reflecting on his moral character. fraud or willful breach of trust. the consistent rule is that if doubts exist between the evidence presented by the employer and the employee. No. These five grounds are just causes for dismissal as provided in Article 282 of the Labor Code.R. In the recent case of Reno Foods v. what is at stake is not only the employee's position.

While the Constitution is committed to the policy of social justice and the protection of the working class. (Solidbank Corporation vs. the Supreme Court has inclined more often than not toward the worker and upheld his cause in his conflicts with the employer. February 22. a forbidden act. Such favoritism.R. The management also has its own rights. April 19. to be dispensed in the light of the established facts and applicable law and doctrine. as such. are entitled to respect and enforcement in the interest of simple fair play. No.establish by competent evidence the fact of their dismissal from employment. NLRC. it should not be supposed that every labor dispute will be automatically decided in favor of labor. No. 2010) Serious Misconduct or Willful Disobedience by the employee of the lawful orders of his employer or representative in connection with his work: Misconduct has been defined as improper or wrong conduct. The misconduct to be serious must be of such grave and aggravated character and not merely trivial and unimportant. Out of its concern for those with less privilege in life. positive and convincing. however. willful in character. 175532. It is the transgression of some established and definite rule of action. The one who alleges a fact has the burden of proving it and the proof should be clear. G. (Romeo Basay vs. 2010) . (Wilfredo Baron vs. has not blinded the Court to the rule that justice is in every case for the deserving. however serious. NLRC. 2010) The law. authorizes neither oppression nor self-destruction of the employer. Such misconduct. in protecting the rights of the laborers.R. must nevertheless be in connection with the employee's work to constitute just cause for his separation. and implies wrongful intent and not mere error of judgment. 182299. Hacienda Consolation.R. G. G. a dereliction of duty. No. March 30. 165951.

does not call for such award of benefits. If an employer had treated his employee well. March 15. (Echeverria vs. 2010) Jurisprudence has classified theft of company property as a serious misconduct. The employee¶s twenty years of service with no negative record prior to his dismissal. vs. NLRC. v.R. Buluan and Analyn A. March 9. Nagkakaisang Lakas Ng Manggagawa (NLM) ± Katipunan. is settled. betrayal of the company. After all.R. Spouses Tomas T. it is only fair to expect a long-time employee to return such fairness with at least some respect and honesty. Inc. insulting or offensive words against a superior constitutes gross misconduct. 2010) That the utterance of obscene. Briones. (Reno Foods. has accorded him fairness and adequate compensation as determined by law. and (c) it must show that the employee has become unfit to continue working for the employer. Inc. Inc. 164016. G. length of service and a previously clean employment record cannot simply erase the gravity of the betrayal exhibited by a malfeasant employee. 181483. Indeed. Thus. If an employee's length of service is to be regarded as justification for moderating the penalty of dismissal.For misconduct to be a just cause for dismissal.Venutek Medika. such gesture will actually become a prize for disloyalty. No.. 2007) In the old case of Radio Communications of the Philippines. Inc.R. G. No. No. distorting the meaning of social justice and undermining the efforts of labor to clean its ranks of undesirables. since his violation reflects a regrettable lack of loyalty and worse. the Court considered the dismissed employee's act of hurling invectives at a co-employee as a minor offense. (Blazer Car Marketing. The Court therein ruled that the . (b) it must relate to the performance of the employee's duties. 169231. vs. (a) it must be serious. it may be said that betrayal by a long-time employee is more insulting and odious for a fair employer. February 15. which is one of the grounds to terminate the services of an employee. an employer-employee relationship is symbiotic where both parties benefit from mutual loyalty and dedicated service. Length of service is not a bargaining chip that can simply be stacked against the employer. G.

It was not merely a violation of company policy.termination of an employee on account of a minor misconduct is illegal because Article 282 of the Labor Code mentions "serious misconduct" as a cause for cessation of employment When an employee. despite repeated warnings from the employer. is a just cause for termination. Inc. which under Article 282 of the Labor Code. G. the same may be a ground for dismissal for serious misconduct. 137795. NLRC. March 26.. Belen P. acts destructive of the morale of one's co-employees may be considered serious misconduct. misrepresenting that a student is his nephew and pressuring and intimidating a co-teacher to change that student's failing grade to passing. and put respondent at risk of being made legally liable. committed as it was in order to "save" costs. insulting or offensive words against a superior. include: sexual harassment (the manager's act of fondling the hands. February 6. G. Villas. Ocean Gateway Maritime and Management. uttering obscene. No. 179293. 159302.R. 2003) . but of the law itself. massaging the shoulder and caressing the nape of a secretary). An employer cannot be compelled to retain in its employ someone whose services are inimical to its interests. 2009) Examples of serious misconduct justifying termination. No. Deputy Minister of Labor. And as it held in Asian Design and Manufacturing Corporation v. as held in some of the Supreme Court decisions. (Colegio De San Juan de Letran ± Calamba vs. A series of irregularities when put together may constitute serious misconduct. (Citibank vs. (Eden Llamas.R.R. obstinately refuses to curtail a bellicose inclination such that it erodes the morale of co-employees. August 14. 2008) For her act of understating the company's profits or financial position was willful and not a mere error of judgment. was supposed to benefit respondent. fighting within company premises. No. which to her warped mind. vs. G.

(Evelyn Chua ± Qua vs. which is one of the just causes for termination. is not at odds with and should not be capitalized on to defeat the security of tenure granted by the Constitution to labor. 169606. G. The deviation of the circumstances of their marriage from the usual societal pattern cannot be considered as a defiance of contemporary social mores.R.. Jose vs. however. and appreciation of the dignity and responsibility of his office. November 27.R. yielding to this gentle and universal emotion is not to be so casually equated with immorality. No. regard for his employer's rules.Sleeping on the job and leaving the work area without prior authorization is a failure to live up to the employer¶s reasonable expectation. 163270. Inc. G. September 11. (Bernardo B. It is beyond question therefore that any employee under the influence of drugs cannot possibly continue doing his duties without posing a serious threat to the lives and property of his co-workers and even his employer. despite the disparity in their ages and academic levels. this only lends substance to the truism that the heart has reasons of its own which reason does not know. definitely. vs. Sr. 1990) . The charge of drug use inside the company's premises and during working hours against the employee constitutes serious misconduct. G. (Eduardo Tomada. Hon. Clave.. has so plainly and completely been bared. respect and loyalty to his employer. But. The Supreme Court took judicial notice of scientific findings that drug abuse can damage the mental faculties of the user. 2009) Drug use in the premises of the employer constitutes serious misconduct. Jacobo C. No.R. 2009) If the teacher and her pupil eventually fell in love. No employer may rationally be expected to continue in employment a person whose lack of morals. 49549. Michaelmar Phils. RFM Corporation ± Bakery Flour Division. No. August 30. This policy. It would seem quite obvious that the avowed policy of the school in rearing and educating children is being unnecessarily bannered to justify the dismissal of the teacher.

(Coca-Cola Bottlers Philippines. 2010) While it is well recognized that an employee's violation of lawful and reasonable company rules or regulations constitutes a just cause for his dismissal. but also his means of livelihood. lawful. G. but also in the larger community. (Jimmy Areno. Inc. She is a role model for her students. 154384. Deliberate disregard or disobedience of rules by the employee cannot be countenanced. made known to the employee. for what is at stake is not only his position. Jr.) . Teachers are being looked up as the models who should lead the way and set the example in fostering a culture of uprightness among the young and in the larger community. Skycable PCC ± Baguio. 158703. her most basic task.. is a demonstration.R. G. September 13. vs. No. willful disobedience of the employer's lawful orders requires the concurrence of two elements: (1) the employee's assailed conduct must have been willful. June 26. through her infractions. she stands in loco parenti to them. (Technological Institute of the Philippines Teachers and Employees Organization vs. that she is not fit to continue undertaking the serious task and the heavy responsibility of a teacher.e. No. 2009) As a just cause for dismissal of an employee under Article 282 of the Labor Code. i. She is looked up to and is accorded genuine respect by almost everyone as a person tasked with the heavy responsibility of molding and guiding the young into what they should be ² productive and law-abiding citizens. integrity and decency. vs. not only in the school. Dominic E. 2004. Failure of a teacher in honestly rating the performance of her students. and (2) the order violated must have been reasonable. G. It may encourage him to do even worse and will render a mockery of the rules of discipline that employees are required to observe.A teacher is no ordinary employee. No. and must pertain to the duties which he had been engaged to discharge.R. February 5. Technological Institute of the Philippines. characterized by a wrongful and perverse attitude. Vital. She is expected to be an exemplar of uprightness.R. 180302. it is also true that the application of such company rules must be done without abuse of discretion.

A waiver is a voluntary and intentional relinquishment or abandonment of a known legal right or privilege. there is willfulness. vs. (R. G.B. CA. the management prerogative to discipline employees and impose punishment is a legal right which cannot. 153510. G. There must be reasonable proportionality between. (Elizabeth C. 180660. v. G." Refusal to provide overtime work despite his knowledge that there is a production deadline that needs to be met. the penalty imposed therefore. Belga. In Lakpue Drug Inc. 144899. thus. be impliedly waived. willfulness was described as "characterized by a wrongful and perverse mental attitude rendering the employee's act inconsistent with proper subordination. on the other hand.) Theft committed by an employee is a valid reason for his dismissal by the employer. No. on the one hand. No. Nito Dual.R. Nicasio C. Galit. 2004. (Maribago Bluewater Beach Resort. July 20. It has been ruled that "a waiver to be valid and effective must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him. 2008) Not every case of willful disobedience by an employee of a lawful workconnected order of the employer may be penalized with dismissal. Thus it is incumbent upon the employee to adduce substantial evidence to demonstrate condonation or waiver on the part of management to forego the exercise of its right to impose sanctions for breach of company rules. the offset machine operator. Bascon vs. Michael Press vs.R. Although as a rule this Court leans over backwards to help workers and employees continue with their employment or to mitigate the penalties imposed on them. Inc. 2010) . February 5. are a different matter. February 13. No." Hence. as a general rule. the willful disobedience by the employee and.R. no further printing can be had shows his wrongful and perverse mental attitude. acts of dishonesty in the handling of company property. and that without him.

August 19. It should also be habitual. Amellar Corporation. depending upon the circumstances. No. The single or isolated act of negligence does not constitute a just cause for the dismissal of the employee. July 31.R.R. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. April 5. 178976. A single or isolated act of negligence does not constitute a just cause for the dismissal of the employee. Habitual neglect implies repeated failure to perform one's duties for a period of time. No. to the detriment of the employer and the latter's business. or the total absence of care. repeated and habitual infractions. Repeated acts of absences without leave and employee¶s frequent tardiness reflect his indifferent attitude to and lack of motivation in his work. v. 183383. but also habitual. No. Inc. 2009. constitute gross misconduct. . Fraud and willful neglect of duties imply bad faith of the employee in failing to perform his job. Anabel Benjamin vs. In JGB and Associates. National Labor Relations Commission. (Chona Estacio vs. G. the negligence should not merely be gross. the negligence should not merely be gross.R. To warrant removal from service. 2010) Habitual absenteeism and tardiness constitute gross and habitual neglect of duties that justifies termination of employment provided that they are sufficiently supported by evidence on record. Philex Mining Corporation. G. More importantly. committed despite several warnings.Gross and habitual neglect by the employee of his duties: Gross negligence connotes want or absence of or failure to exercise even slight care or diligence. Pampanga I Electric Cooperative. Abel vs. 2009) It bears stressing that in dismissing an employee for gross and habitual neglect of duties. (Abelardo P. 183196. G. the Supreme Court further declared that gross negligence connotes want of care in the performance of one's duties.

Ordinary breach will not suffice. as a cause for termination of employment.B. (Kulas Ideas & Creations vs. knowingly and purposely. February 18. 2010) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative: Loss of trust and confidence. as a ground for dismissal. heedlessly or inadvertently.Habitual tardiness is a form of neglect of duty. As such." In both instances. Juliet Alcoseba. (R. is premised on the fact that the employee concerned holds a position of responsibility or of trust and confidence. No. A breach of trust is willful if it is done intentionally. Habitual and excessive tardiness is inimical to the general productivity and business of the employer. Lack of initiative. otherwise the constitutional guaranty of security of tenure of the employee would be jeopardized. Galit.R. This is especially true when the tardiness and/or absenteeism occurred frequently and repeatedly within an extensive period of time. must be based on the willful breach of the trust reposed in the employee by his employer. Nicasio C. 180123. G. Michael Press vs.R. Loss of trust and confidence. Uncorroborated assertions and accusations by the employer do not suffice. thoughtlessly. 2008) Article 282 (b) and (c) of the Labor Code provide that an employer may terminate an employee for "gross and habitual neglect by the employee of his duties" and for "fraud. without justifiable excuse. No. such . diligence. February 13. G. substantial evidence is necessary for an employer to effectuate any dismissal. and discipline to come to work on time everyday exhibits the employee's deportment towards work. 153510. he must be invested with confidence on delicate matters. as distinguished from an act done carelessly.

that the employee concerned is responsible for the misconduct and that his participation in the misconduct rendered him absolutely unworthy of trust and confidence. as a just cause for dismissal.as custody. February 16. March 9. While proof beyond reasonable doubt is not required still. (c) it may not be arbitrarily asserted in the face of overwhelming evidence to the contrary. Alivado vs. if not to entertain the moral conviction. and (e) the employee involved holds a position of trust and confidence. not a mere afterthought. the confluence of the following requisites must be established: (a) the loss of confidence must not be simulated. to justify earlier action taken in bad faith. Procter & Gamble Philippines. Ancheta vs. substantial evidence is vital and the burden rests on the employer to establish it. G. in order to constitute a just cause for dismissal. And. The quantum of proof which the employer must discharge is substantial evidence. 156994. it is sufficient that there must only be some basis for the loss of trust and confidence or that there is reasonable ground to believe. G. Rustan's Commercial Corporation.. No. (b) it should not be used as a subterfuge for causes which are illegal. No. handling or care and protection of the property and assets of the employer. August 31. 2010) In Sagales v. Uy. the act complained of must be work-related and must show that the employee is unfit to continue to work for the employer. Ramon A. (BPI vs. Rolando P. the Supreme Court held that in loss of trust and confidence. 160506. No. An employee's dismissal due to serious misconduct and loss of trust and confidence must be supported by substantial evidence. Moreover.. Destiny Financial Plans. To validly dismiss an employee on the ground of loss of trust and confidence. (Joeb M.R.R. the term trust and confidence is restricted to managerial employees only. Inc. G. 2010.) .R. improper or unjustified. Inc. Any other rule would place the employee eternally at the mercy of the employer. 2005. (d) it must be genuine. 179702.

2005) The rule. But as regards a managerial employee. Peak Development. Caquioa. 2005. The law. Apostol. G. G. 179507. in protecting the rights of labor. No.R. loss of trust and confidence as ground for valid dismissal requires proof of involvement in the alleged events in question and that mere uncorroborated assertions and accusations by the employer will not suffice. (Cynthia Gana vs. or that his employer has ample reason to distrust him. authorizes neither oppression nor selfdestruction of an employer company which itself is possessed of rights that must be entitled to recognition and respect. 148288. Equitable PCI Bank vs. therefore. G. June 16. No. 2009) The settled rule is that the mere existence of a basis for believing that a managerial employee has breached the trust of the employer justifies dismissal. NLRC. Generosa A. Inc.R.. G. Ramon L. G. the labor tribunal cannot justly deny the employer the authority to dismiss such employee.R. Inefficiency may be unmasked either by: (a) comparing it with efficiency or (b) by showing its effects on the company.R. 159170.R. June 13. Myrna B. (Triumph International (Phils. mere existence of a basis for believing that such employee has breached the trust of his employer would suffice for his dismissal. 183196. August 12. 2008. 12. No. (EatsCetera Food Services Outlet vs. R. Inc.With respect to rank-and-file personnel. Aug. No.´ (Rosemarie Balba vs. vs. 2009) Inefficiency should have a factual basis to be a ground of loss of trust and confidence on managerial employee. Chona Estacio vs. August 19. 164640.). Pampanga I Electric Cooperative. 2009) . No. is that if there is sufficient evidence to show that the employee occupying a position of trust and confidence is guilty of a breach of trust. G. Letran. October 2. 164423.

G. Analogous causes must have an element similar to those found in the specific just causes enumerated under Article 282. May 12. 148544. without the knowledge and consent of the employer and without said rebates and commissions being reported and turned over to the latter. No.R. This is all the more true in the case of supervisors or personnel occupying positions of responsibility. NLRC. On the other hand. Settled is the rule that an employer cannot be compelled to retain an employee who is guilty of acts inimical to the interests of the employer. conviction of a crime involving moral turpitude is not one of these justifiable causes. (Felix Cruz vs. are acts which can clearly be considered as a willful breach of trust and confidence reposed by the employer upon him. Neither may said ground be justified under Article 282 (c) nor under 282 (d) by analogy. July 12. 2006) 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: Article 282 of the Labor Code enumerates the just causes wherein an employer may terminate an employment. It cannot be gainsaid that the breach of trust must be related to the performance of the employee's function. 1993) . (International Rice Research Institute vs. Verily. CA. 97239.Employee¶s acceptance of commissions and rebates from a customer. No.R. G. Fraud or willful breach by the employees of the trust reposed in him by his employer or duly authorized representative under Article 282 (c) refers to any fault or culpability on the part of the employee in the discharge of his duty rendering him absolutely unworthy of the trust and confidence demanded by his position. the commission of a crime by the employee under Article 282 (d) refers to an offense against the person of his employer or any immediate member of his family or his duly authorized representative. A company has the right to dismiss its employees if only as a measure of selfprotection.

But the employee's supposed ³attitude problem´ must be shown by clear and convincing evidence. Theft committed . 109609.R. A cause analogous to serious misconduct is a voluntary and/or willful act or omission attesting to an employee's moral depravity. 154410.Other causes analogous to the foregoing: A purely private quarrel or fighting within the premises of a company which disturbed the peace in the company is analogous to serious misconduct within the meaning of Article 282 (a) of the Labor Code. the organization cannot function well. providing for the dismissal of employees. management has the prerogative to take the necessary action to correct the situation and protect its organization. Without the necessary teamwork and synergy. For an employee to be validly dismissed for a cause analogous to those enumerated in Article 282. G. the peace of the company is affected. CA. the cause must involve a voluntary and/or willful act or omission of the employee. October 20. It is a situation analogous to loss of trust and confidence that must be duly proved by the employer. And her failure to refute the employer's allegation of her negative attitude does not amount to admission. No. NLRC. May 8. When personal differences between employees and management affect the work environment. (Segundino Royo vs. Thus. 2005) Article 282 (e) of the Labor Code talks of other analogous causes or those which are susceptible of comparison to another in general or in specific detail. (Heavylift Manila vs. No. G. an employee's attitude problem is a valid ground for his termination. Thus. 1996) An employee who cannot get along with his co-employees is detrimental to the company for he can upset and strain the working environment.R. The mere mention of negative feedback from the employee's team members is not sufficient proof of her attitude problem.

with the second element as the more determinative factor and being manifested by some overt acts. the Supreme Court ruled that an employer's claim that an employee was not dismissed but voluntarily left his employment is effectively belied by the filing of a complaint for illegal dismissal. To constitute abandonment. Alicia V. that . if proven by substantial evidence. Macial Baluyot. G. 152234. after all. 2010) In a number of cases. is a cause analogous to serious misconduct. Inc.R. Rule XIV. Bautista. (Diversified Security. No. two elements must concur: (1) the failure to report for work or absence without valid or justifiable reason. and (2) a clear intention to sever the employer-employee relationship. January 20.. Joanna Cantre Davis.by an employee against a person other than his employer. Mere absence is not sufficient. 169549. The employer has the burden of proof to show a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning. G. vs. the employer should have given the emploee a notice with warning concerning her alleged absences (Section 2. Only after compliance had been effected with those requirements can it be reasonably concluded that the employee had actually abandoned his job. 2008) Abandonment of work is analogous to gross and habitual neglect by the employee of his duties.R. et al. (RBC Cable Master System vs. The notice requirement actually consists of two parts to be separately served on the employee to wit: (1) notice to apprise the employee of his absences with a warning concerning a possible severance of employment in the event of an unjustified excuse therefor.R. April 15. (John Hancock Life Insurance Corp. No. Thusly. 2009) The law clearly spells out the manner with which an unjustified refusal to return to work by an employee may be established. and (2) subsequent notice of the decision to dismiss in the event of an employee's refusal to pay heed to such warning. G. It is settled. September 3. vs. Implementing Rules and Regulations of the Labor Code). No. 172670. Book V.

whichever is higher. the separation pay shall be equivalent to one (1) month pay or to at least one-half (1/2) month pay for every year of service. taking the best interest of laborers in mind. Briones. Thus. A fraction of at least six (6) months shall be considered one (1) whole year. the bias towards labor is very apparent. No. such as when management decides to reduce personnel based on valid grounds. for an employee who takes steps to protest his dismissal cannot. vs. (Blazer Car Marketing. whichever is higher. It then becomes imperative that the employer affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause. The Supreme Court held that Article 283 of the Labor Code was drafted by the legislature. Bulauan and Analyn A. ² The employer may also terminate the employment of any employee due to the installation of labor saving devices. Closure of establishment and reduction of personnel. Inc. Spouses Tomas T. by logic. It is clear that the causes of the termination of an employee under Article 283 are due to circumstances beyond their control. redundancy. 181483. by serving a written notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date thereof. 2010) ARTICLE 283. 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. as the employer is statutorily required to pay . 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 filing of a complaint for illegal dismissal is inconsistent with the charge of abandonment. March 9. 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. be said to have abandoned his work. or when the employer decides to cease operations.R. In case of termination due to the installation of labor saving devices or redundancy. G.

March 30. (Dannie M. after less drastic means have been tried and found wanting. seasonal fluctuations. The labor tribunals and the courts should refrain from adding more than what the law requires.R. To effect a valid retrenchment. 2010) The employer's prerogative to bring down labor costs by retrenching must be exercised essentially as a measure of last resort. G. As held in International Harvester Macleod. the determination of the need to phase out a particular department and consequent reduction of personnel and reorganization as a labor and cost saving device is a recognized management prerogative which the courts will not generally interfere with. April 23. but substantial. the free will of management to conduct its own business affairs to achieve its purpose cannot be denied. or automation. (2) the employer serves written notice both to the employee/s concerned and the DOLE at least one month before the intended date of retrenchment. the following elements must be present: (1) the retrenchment is reasonably necessary and likely to prevent business losses which. shortage of materials. are reasonably imminent as perceived objectively and in good faith by the employer. Intermediate Appellate Court. v. any business establishment that decides to cease its operations has the burden of complying with the law. No. 165951. 163554. It is resorted to during periods of business recession. if already incurred. After all. SCA Hygiene Products Corporation. as the same is within the realm of the legislature. the wisdom of a business judgment to implement a cost saving device is beyond the court's determination. It is a management prerogative resorted to avoid or minimize business losses. NLRC.R. serious and real. Inc. and is recognized by Article 283 of the Labor Code. are not merely de minimis. 2010) Retrenchment is the termination of employment initiated by the employer through no fault of and without prejudice to the employees. (Solidbank Corporation vs. conversion of the plant to a new production program. No. the amount of which is also statutorily prescribed. G. (3) the employer pays the retrenched employee separation pay in . or only if expected. Pantoja vs. As long as no arbitrary or malicious action on the part of an employer is shown. industrial depression.separation pay. or during lulls occasioned by lack of orders. Thus.

Otherwise. This is so because Article 283 itself does not speak of temporary or permanent retrenchment. (AMA Computer College.R. if already incurred. however. vs. No. NLRC et al. No.R. July 12. hence. 166703. Aug. Helen Binamira. G. the employer . (2) the losses are actual or reasonably imminent. there is no need to qualify the term. Ely Garcia.R. (Lambert Pawnbrokers and Jewelry Corporation vs. However. 2005. April 15. 147002. G. (Philippine Telegraph and Telephone Corporation. and (d) the alleged losses. the right of affected employees to separation pay is lost for obvious reasons. are proven by sufficient and convincing evidence. 11. No. and (5) the employer uses fair and reasonable criteria in ascertaining who would be retrenched or retained. 2008) The condition of business losses is normally shown by audited financial documents.an amount prescribed by the Code. No. that compliance with the one-month notice rule is mandatory regardless of whether the retrenchment is temporary or permanent. (Stanley Garments Specialist vs. like yearly balance sheets and profit and loss statements as well as annual income tax returns. entitling the dismissed employee to payment of indemnity in the form of nominal damages.R.) The employer must prove that the cessation of or withdrawal from business operations was bona fide in character and not impelled by a motive to defeat or circumvent the tenurial rights of employees. 170464.. it merely renders the same defective. G. or the expected imminent losses sought to be forestalled. George Gomez et al.. 154818. the employer's failure to comply with the one month notice requirement prior to retrenchment does not render the termination illegal. (3) the retrenchment is reasonably necessary and is likely to be effective in preventing the expected losses. 2010) The Supreme Court has identified the necessary conditions for the company losses to justify retrenchment: (1) the losses incurred are substantial and not de minimis. if the business losses that justify the closure of the establishment are duly proved. G. vs. April 14. 2005) It must be stressed. (4) the employer exercises its prerogative to retrench in good faith. Inc. Parenthetically.

154368. the burden of proving. Clearly then. (Capitol Medical Center. April 15. the exercise of which no court or tribunal can meddle with. Cesar E. However.) The decision to close business is a management prerogative exclusive to the employer. (Nasipit Lumber Company and Philippine Wallboard Corporation vs. which the State does not usually interfere with as no business or undertaking is required to continue operating at a loss simply because it has to maintain its workers in employment. therefore.R. vs.. 2005) Closure or suspension of operations for economic reasons is. Such an act would be tantamount to a taking of property without due process of law.) The phrase ³closures or cessation of operations of establishment or undertaking´ includes a partial or total closure or cessation. except only . Henry M. 146225. et al. G. No. 2005. Inc.closing his business is obligated to pay his employees their separation pay. Inc. Daguman et al. G. Sept. Dr.R. (Danzas International.. that such closure or suspension is bona fide falls upon the employer. as long as he pays his employees their termination pay in the amount corresponding to their length of service. 2004. G. the right to close an establishment or undertaking may be justified on grounds other than business losses but it cannot be an unbridled prerogative to suit the whims of the employer. 155098. The determination to cease or suspend operations is a prerogative of management. And the burden of proving such falls upon the employer. vs. Meris. with sufficient and convincing evidence. No. National Organization of Workingmen et al.. 16. And the phrase ³closures or cessation x x x not due to serious business losses or financial reverses´ recognizes the right of the employer to close or cease his business operations or undertaking even if he is not suffering from serious business losses or financial reverses. The ultimate test of the validity of closure or cessation of establishment or undertaking is that it must be bona fide in character.R. November 25. recognized as a valid exercise of management prerogative.

G. whichever is higher. such as over-hiring of workers. and c) in case of closure/cessation of business not due to financial losses. its purpose is to advance the interest of the employer and not to defeat or circumvent the rights of employees under the law or a valid agreement. in case of cessation of operations.. the employer has no legal obligation to keep in its payroll more employees than are necessary for the operation of its business. decreased volume of business. (Eastbridge Golf Club. Inc. 2010) A redundant position is one rendered superfluous by any number of factors. G. No. such as overhiring of workers.when the employer fails to prove compliance with the requirements of Art.R. 165951. Among the requisites of a valid redundancy program are: (1) the good faith of the employer in abolishing the redundant position. b) that written notice was served on the employees and the DOLE at least one month before the intended date of closure or cessation of business. the employer is only required to pay his employees a separation pay of one month pay or at least one-half month pay for every year of service. i.R. 166760. whichever is higher. 283. that the employees affected have been given separation pay equivalent to 1/2 month pay for every year of service or one month pay. and (2) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. March 30. That is all that the law requires. dropping of a particular product line previously manufactured by the company or phasing out of service activity priorly undertaken by the business. NLRC. 2008) Based on Article 283. decreased volume of business.. to wit: a) that the closure/cessation of business is bona fide. No. A reasonably redundant position is one rendered superfluous by any number of factors. (Solidbank Corporation vs. It is the burden of the . Under these conditions. dropping of a particular product line previously manufactured by the company or phasing out of a service activity priorly undertaken by the business Redundancy exists when the service capability of the workforce is in excess of what is reasonably needed to meet the demands of the business enterprise. August 22.e.

That he is paid separation pay equivalent to at least one (1) month salary or to one-half month salary for every year of service. 160391. (Standard Electric Manufacturing Corporation vs. vs.) The trial court¶s dismissal of the criminal case for insufficiency of evidence tantamount to an acquittal of the crime charged and the arrest and detention were without factual and legal basis. Detention of an employee while his case is being tried by the court is not a ground for termination of employment due to abandonment. whichever is greater. Inc. Disease as ground for termination. G. 9. His entitlement to full backwages should commence from the time he was refused reinstatement. 166111. it would sanction the unilateral and arbitrary determination by the employer of the gravity or extent of the employee's illness and thus defeat the public policy on the protection of labor. 2005. The requirement for a medical certificate under Article 284 of the Labor Code cannot be dispensed with. NUWHRAIN and Rowena Agoncillo. (Dusit Hotel Nikko et al. R. August 25. It is not disputed that an employer may terminate the services of his . ² 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. Rogelio Javier et al. 129584.R. No. G. the employee is not entitled to salary during his detention. NLRC. 1998) The dismissal of the regular employees by the employer due to disease or incurable illness must comply with the requirements of Article 284 of the Labor Code.employer to prove the factual and legal basis for the dismissal of its employees on the ground of redundancy. 2005) ARTICLE 284. Aug. December 3. (Triple Eight Integrated Services. G. otherwise. No..R. No. vs. However. a fraction of at least six (6) months being considered as one (1) whole year.

No. (2) Inhuman and unbearable treatment accorded the employee by the employer or his representative. Termination by employee. 167727. G. 2001) For a dismissal on the ground of disease to be considered valid. Inc.employee who has been found to be suffering from a disease when the latter's continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees.. 8.R. However. August 9. and in the absence of such certification. Book VI. Rule I.R. (Crayons Processing. the dismissal may not be summarily carried out. (3) Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family. et al. (b) An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes: (1) Serious insult by the employer or his representative on the honor and person of the employee. and (b) a certification to that effect must be issued by a competent public health authority. Court of Appeals. The employer upon whom no such notice was served may hold the employee liable for damages. No. G. The employer must comply with certain prerequisites contained in Sec. the dismissal must necessarily be declared illegal. ² (a) An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. vs. (ATCI Overseas Corp. two requisites must concur: (a) the employee must be suffering from a disease which cannot be cured within six months and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees. 2007) ARTICLE 285. of the Omnibus Rules Implementing the Labor Code. vs. Felipe Pula. and . 143949. The burden falls upon the employer to establish these requisites. July 30.

or disdain by an employer exists and has become unbearable to the employee. G. There can be no valid resignation where the act was made under compulsion or under circumstances approximating compulsion. such as when an employee's act of handing in his resignation was a reaction to circumstances leaving him no alternative but to resign. Equitable General Services. It arises when a clear discrimination. 185269.. The fact of filing a resignation letter alone does not shift the burden of proving that the employee's dismissal was for a just and valid cause from the employer to the employee. and unfavorable conditions set by the employer. among others. Malig ± on vs. Avesco. No. Outdoor Clothing Manufacturing Corporation. hostile. The gauge for constructive dismissal is whether a reasonable person in the employee's position would feel compelled to give up his employment under the prevailing circumstances.(4) Other causes analogous to any of the foregoing.R. the Supreme Court ruled that should the employer interpose the defense of resignation. Those circumstances must be consistent with the employee's intent to give up work. as involuntarily resignation due to the harsh. the burden is on the employer to prove that he did so willingly. (Manolo A. Inc. it is still incumbent upon the employer to prove that the employee voluntarily resigned. This falls squarely within the concept of constructive dismissal that jurisprudence defines. 2010) .R. 177114. (Elsa S. insensibility. 3 Whether that is the case would largely depend on the circumstances surrounding such alleged resignation. In Mora v. 2 And. when the employer claims that the employee resigned from work. No. April 13. Penaflor vs. June 29. 2010) The rule in termination cases is that the employer bears the burden of proving that he dismissed his employee for a just cause. Even if the letter states that the employee¶s resignation was irrevocable. Precisely because of the attendant hostile and discriminatory working environment. it does not necessarily signify that it was also voluntarily executed. G. the employee decided to permanently sever his ties with his employer.

unreasonable or unlikely. insensibility or disdain by an employer has become so unbearable to the employee leaving him with no option but to forego with his continued employment. or prejudicial to the employee. G. Bulauan and Analyn A. Transit Automotive Supply. 181483. Spouses Tomas T. No. (Blazer Car Marketing. or when there is a demotion in rank or a diminution of pay. Briones.. 2010) In constructive dismissal cases. Failure of the employer to overcome this burden of proof taints the employee's transfer as a constructive dismissal. G.R. that the filing of a complaint for illegal dismissal is inconsistent with the charge of abandonment. (Philippine Veterans Banks vs. Inc. vs. June 18. after all. for an employee who takes steps to protest his dismissal cannot. It exists when an act of clear discrimination. March 30. the employer has the burden of proving that its conduct and action or the transfer of an employee are for valid and legitimate grounds such as genuine business necessity.R. No. Particularly.R. No. It then becomes imperative that the employer affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause. (Estrella Velasco vs. March 9. Inc. for a transfer not to be considered a constructive dismissal. the Supreme Court has ruled that an employer's claim that an employee was not dismissed but voluntarily left his employment is effectively belied by the filing of a complaint for illegal dismissal. be said to have abandoned his work. the employer must be able to show that such transfer is not unreasonable. 188882. 2010) In a number of cases. 2010) When preventive suspension exceeds the maximum period allowed without reinstating the employee either by actual or payroll reinstatement or when . NLRC. inconvenient. G.Constructive dismissal is defined as a quitting because continued employment is rendered impossible. The test of constructive dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his position under the circumstances. by logic. It is settled. 171327.

who are union members as of the effective date of the agreement. (Ma. unreasonable or unlikely. Corporation. then there can be no question as to its legality or illegality. 2010) Another cause for termination is dismissal from employment due to the enforcement of the union security clause in the CBA: "Union security" is a generic term. 173631. which is applied to and comprehends "closed shop. or who thereafter become members. No. July 5. No. Add Force Personnel Services." or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. G. There is maintenance of membership shop when employees. must maintain union membership as a condition for continued employment until they are promoted or transferred out ..R. Virgilio Pulgar. No. Danilo Rollo et al." "maintenance of membership. (Pasig Cylinder Mfg. Bare allegations of constructive dismissal. July 6. September 8. Inc.R. Logically. Socorro Mandapat vs.R." "union shop. if there is no dismissal. rendering employees¶ employment impossible. (Philippine Rural Reconstruction Movement vs.preventive suspension is for indefinite period. vs. cannot be given credence.. leaving them no choice but to quit. only then will constructive dismissal set in. 169227. et al. when uncorroborated by the evidence on record. There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment. 2010) Employers are liable for constructive dismissal for placing employees on shifts of a few days per month and in eventually denying them workplace access. [G. G. 2010) Before the employer must bear the burden of proving that the dismissal was legal. 180285. the employee must first establish by substantial evidence the fact of his dismissal from service.

no person may be employed in any or certain agreed departments of the enterprise unless he or she is. Incorporated (PRI). becomes.R. for the duration of the agreement. 2009) ARTICLE 286. March 10. First Philippine Scales.. Taneca. Anacleto L.of the bargaining unit or the agreement is terminated. When employment not deemed terminated. G. No.R. by agreement between the employer and his employees or their representatives. An employee is entitled to be protected not only from a company which disregards his rights but also from his own Union. No. on the other hand. the leadership of which could yield to the temptation of swift and arbitrary expulsion from membership and mere dismissal from his job. except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. the employer needs only to determine and prove that: (1) the union security clause is applicable. 160828. Inc. 149552. 165407. June 5. Ernesto Casio et al. remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part. ² The bona fide suspension of the operation of a business or undertaking for a period not . Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment. A closed shop. and. vs. 2010. (Inguillo vs. In terminating the employment of an employee by enforcing the union security clause.. G. and (3) there is sufficient evidence to support the decision of the union to expel the employee from the union. PICOP Resources. 2010) The right of an employee to be informed of the charges against him and to reasonable opportunity to present his side in a controversy with either the company or his own Union is not wiped away by a Union Security Clause or a Union Shop Clause in a collective bargaining agreement. August 9. may be defined as an enterprise in which.R. G. No. (General Milling Corporation vs. (2) the union is requesting for the enforcement of the union security provision in the CBA. These requisites constitute just cause for terminating an employee based on the union security provision of the CBA.

the sidelining should continue only for six months. recognized as a valid exercise of management prerogative. (Mobile Protective & Detective Agency vs. there is no termination of the employment of the employees. then the employment of the employees would be deemed terminated. therefore. an employer may bona fide suspend the operation of its business for a period of not exceeding six (6) months.exceeding six (6) months.R. When the suspension of the business operations exceeds six (6) months. Such an act would be tantamount to a taking of property . Closure or suspension of operations for economic reasons is. if the operation of the business is resumed within six (6) months from the bona fide suspension thereof. the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. However. In such a case. 159195. The Supreme Court recognizes that security guards may be temporarily sidelined by their security agency as their assignments primarily depend on the contracts entered into by the latter with third parties. In all such cases. No. which the State does not usually interfere with as no business or undertaking is required to continue operating at a loss simply because it has to maintain its workers in employment. if the latter would indicate their desire to resume work within one (1) month from such resumption of operations. but only a temporary displacement. On the other hand. or the fulfillment by the employee of a military or civic duty shall not terminate employment. conformably to Article 286 of the Labor Code. 2005. Ompad. The determination to cease or suspend operations is a prerogative of management. Alberto G. Otherwise. it shall be the duty of the employer to reinstate his employees to their former positions without loss of seniority rights.) Under Article 286 of the Labor Code. G. May 9. the security agency concerned could be liable for constructive dismissal.

That an employee's retirement benefits under any collective bargaining and other agreements shall not be less than those provided herein. In case of retirement. a fraction of at least six (6) months being considered as one whole year. Retirement.R. 146225. Unless the parties provide for broader inclusions. the burden of proving. the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining agreement and other agreements: Provided. the term one half (1/2) month salary's shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves. . however. No. November 25. In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment. with sufficient and convincing evidence.without due process of law. However. but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age. who has served at least five (5) years in the said establishment. ² Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. (Nasipit Lumber Company and Philippine Wallboard Corporation vs. National Organization of Workingmen. that such closure or suspension is bona fide falls upon the employer. 2004) ARTICLE 287. G. may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service. an employee upon reaching the age of sixty (60) years or more.

R. 1998). a fraction of at least six (6) months being considered as one whole year. Retail. 156644. while the set minimum age for optional retirement is 60 years. the term one half-month salary shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves..) . Latag. the legally mandated age for compulsory retirement is 65 years. et al. et al. G. Agripino Caballeda. vs. July 28. No. February 13. but not beyond sixty (60) years which is hereby declared the compulsory retirement age for underground mine workers. No. who has served at least five (5) years in said establishment. may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service. 26. vs. Unless the parties provide for broader inclusions. may retire and shall be entitled to all the retirement benefits provided for in this article. G. 8558. (An amendment by RA No. who has served at least five (5) years as underground mine workers. Avelina P. Violation of this provision is hereby declared unlawful and subject to the penal provisions under Article 288 of this Code.An underground mining employee upon reaching the age of fifty (50) years or more. but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age. 155214. (URSUMCO. Under Article 287 of the Labor Code as amended. 2004. service and agricultural establishments or operations employing not more than ten (10) employees or workers are exempted from the coverage of this provision. (R & E Transport Inc. an employee upon reaching the age of sixty (60) years or more.R. 2008) In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment. Feb.

2005. G.) There are three kinds of retirement schemes.R. however. January 17. Lopez vs. The first type is compulsory and contributory in character. No.. (Marilyn Odchimar Gerlach vs. May 28. The second paragraph deals with the retirement benefits to be received by a retiring employee which he may have earned under (a) an existing law. such interpretation cannot be made in light of the clear lack of consensual and statutory basis of the grant of retirement benefits. et al. as amended by R. June 16. Philippines G.) . 149674. S. Inc. 7641. Ltd. The first paragraph of Article 287 deals with the retirement age of an employee established in (a) a collective bargaining agreement or (b) other applicable employment contract. Thereunder he could choose to retire upon reaching the age of 60 years.. provided it is before reaching 65 years. (Jose B. vs. No. (b) a collective bargaining or (c) other agreements. The third type is one that is voluntarily given by the employer. 148542. 2010) While it is axiomatic that retirement laws are liberally construed in favor of the persons intended to be benefited. February 16. National Steel Corporation. vs.. Philippine Global Communications.R. No. G. expressly as in an announced company policy or impliedly as in a failure to contest the employee's claim for retirement benefits. 2004. Reuters Limited. which is the compulsory age of retirement.R.By his acceptance of retirement benefits the employee is deemed to have opted to retire under the third paragraph of Article 287 of the Labor Code.) If retirement plan provides that employee cannot receive both retirement benefits and separation pay then he is not entitled to both. G. Adelina A. The second type is one set up by agreement between the employer and the employees in collective bargaining agreements or other agreements between them. Cruz et al. Yuson. 141868.A. No. 2004. No. 170369. (Divina S. (Korean Air Co.R.

sickness benefits and maternity leave benefits. permanent disability benefits. as part of a broader social security system that provides not only for retirement benefits but also death and funeral benefits. In other words.R. 1989) . Article 287 recognizes that existing laws already provide for a scheme by which retirement benefits may be earned or accrue in favor of employees.It is apparent that Article 287 does not itself purport to impose any obligation upon employers to set up a retirement scheme for their employees over and above that already established under existing laws. Franklin Drilon. 82895. G. (Llora Motors. Inc. vs. November 7. No.