POST EMPLOYMENT *Art. 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. *The exercise of management prerogative is subject to the limitations impose by law or by the CBA, employment contract, employer policy or practice and general principles of fair play and justice. *Transfer; concept and meaning A transfer means a movement: 1. From one position to another of equivalent rank, level, or salary, without breaking in the service; or 2. From one office to another within the same business establishment. *Transfer as Constructive Dismissal (Requisites): 1. When the transfer is unreasonable, inconvenient or prejudicial to the employee; 2. When the transfer involves a demotion in rank or diminution of salaries, benefits and other privileges; 3. When the employer performs a clear act of discrimination, insensibility, or disdain towards the employee, which forecloses any choice by the latter except to forego his continued employment. *The refusal of an employee to be transferred may be held justified if there is a showing that the transfer was directed by the employer under questionable circumstances. *An employee who refuses to be transferred, when such transfer is valid, is guilty of insubordination or willful disobedience of a lawful order of an employer under Art.282. *The validity of reassignments/transfers pending investigation f the irregularities allegedly committed by employees has been consistently upheld, the rationale being that the purpose of reassignments is no different from hat of preventive suspension which management could validly impose as a measure of protection of the company’s property pending investigation of any malfeasance or misfeasance committed by the employees. *Frequent transfers of short duration were held to be indirect ways of dismissing an employee. *Promotion- is the advancement from one position to another involving increase in duties and responsibilities as authorized by law, and increase in compensation and benefits. *Distinction between Transfer and Promotion

Promotion denotes a scalar ascent of an officer or an employee to another position, higher either in rank or salary. Transfer, on the other hand, involves lateral movement from one position to another of equivalent level, rank or salary. *An employee cannot be promoted without his consent even if merely as a result of transfer. A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to lure the employee away from his permanent position cannot be done without his consent. *Demotion- there is demotion where there is reduction in position, rank or salary as a result of transfer. *Proportionality Rule Management may lawfully impose appropriate penalties on erring workers pursuant to its company rules and regulations. However, the penalty must be commensurate with the gravity of the offense, the act, conduct or omission, imputed to the employee and imposed in connection with the employer’s disciplinary authority. *In case of project employment, if the termination is brought about by the completion of the project or any phase thereof, due process is complied with even if no prior notice of termination is served. *In case of seasonal employment, where the work or service to be performed by the employee is seasonal in nature and the employment is for the duration of the season, no prior notice of termination of the seasonal employment is also required in order to comply with the due process requirement. *In case of casual employment, where the job, work or service to be performed is merely incidental to the business of the employer, and such job, work or service to be performed is for a definite period made known to the employee at the time of engagement, no prior notice of termination is also required to subserv due process. *In case of fixed-period employment, the same rule applies. *Preventive Suspension The employer may place the worker concerned under preventive suspension for a period of 30 days if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. During the said period, the employee is not entitled to his wages. But if the 30-day period is extended because the employer has not finished its investigation of the case, the employee should be paid his wages during the period of extension. Indefinite preventive suspension amounts to constructive dismissal. *Distinction of Suspension from Preventive Suspension Preventive suspension is not a penalty but merely a preventive measure; while suspension is a penalty. Preventive suspension is imposed AT THE INCEPTION of the administrative proceeding to be conducted by the employer and while the same is ongoing.

Suspension is imposed as a penalty AFTER the conduct of such proceeding, if the evidence gathered in the course thereof warrants its imposition. *Dismissal connotes a permanent severance of the employment relationship or complete separation of the worker from the service on the initiative of the employer regardless of the reasons thereof. *Reliefs Available to an Illegalli Dismissed Employee 1. Reinstatement without loss of seniority rights and other privileges. In case reinstatement is impossible, payment of separation pay in lieu thereof may be awarded, computed at one month or one month pay per year of service, whichever is higher. 2. Full backwages, inclusive of allowances. 3. Other benefits or their monetary equivalent. 4. Damages. 5. Attorney’s fee. 6. Legal interest on separation pay and backwages. *Distinction between Reinstatement in Art.279 and the other forms of reinstatement: 1. On the nature of the order of reinstatement- the reinstatement under art.279 may only be granted in cases of final and executor judgment, and not while the case for illegal dismissal are still pending as in the reinstatement provided under art.223, 224, 263. 2. The reinstatement under 279 may only be executed and enforced through the issuance of a writ of execution. *An illegally dismissed employee is entitled to be reinstated to his former position, unless such position no longer exists at the time of his reinstatement, in which case, he should be given a substantially equivalent position in the same establishment without loss of seniority rights. *Doctrine of Strained Relations Where the doctrine is invoked that the common denominator which bars reinstatement is the nature of the position of the employee. If the nature of the position requires that trust and confidence be reposed by the employer upon the employee occupying it as would make reinstatement adversely affect the efficiency, productivity and performance of the latter, strained relations may be invoked in order to justify non-reinstatement. Where the employee, however, has no say in the operation of his employer’s business, invocation of this doctrine is not proper. *PLDT Doctrine 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. *San Miguel Test Under the San Miguel test, separation pay may exceptionally be awarded as a measure of social justice, only when the dismissal does not fall under either of two circumstances: 1. There was serious misconduct; 2. The dismissal reflected on the employee’s moral character.

*Toyota Doctrine In addition to serious misconduct, in dismissal based on the grounds under Art.282 like willful disobedience, gross and habitual neglect of duty, etc., separation pay should not be conceded to the dismissed employee. -ExceptWhen termination is based on analogous causes. *Backwages represent compensation that should have been earned by the employee but were lost because of the unjust or illegal dismissal. *Bustamante Rule Backwages to be awarded to an illegally dismissed employee should not, as a general rule, be diminished or reduced by the earnings derived by him elsewhere during the period of his illegal dismissal. *Reinstatement, Distinguished Separation Pay and Backwages

-Separation pay is proper only when reinstatement is no longer possible, viable, or feasible. Hence, it is a substitute remedy to reinstatement. Reinstatement and separation pay cannot be ordered together. -Reinstatement restores the employee who was unjustly dismissed to the position from which he was removed; while the grant of backwages allows the same employee to recover from the employer that which he had lost by way of wages as a result of his dismissal. Separation Pay in lieu of Reinstatement 1. Paid when reinstatement is not possible; Backwages

-paid for the compensation which otherwise the employee should have earned had he not been illegally dismissed. -based on the actual 2. Computed based on employee’s length of period when he was service; unlawfully prevented from working. 3. Paid as a wherewithal -paid for the loss of earnings during the period during the period that an employee is looking for between illegal dismissal another employment; and reinstatement; 4. Oriented towards the -involve the restoration of immediate future; the past income lost; 5. Separation pay cannot be paid in lieu of backwages. STATUS OF EMPLOYMENT *Regular Appointment which is attained in either of three ways, to wit: 1. By nature of work- the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. 2. By period of service- the employee has rendered at least one year of service, whether such service is continuous or broken, with respect to the activity in which he is employed and his employment shall continue while such activity exist.

3. By probationary employment- the employee is allowed to work after a probationary period. *Distinction between Probationary and Fixed-term Employment In probationary employment, both the employer and employee mutually intend to make the employment status of the latter regular and permanent after he shall have successfully hurdled and passed the trial period. No such intention exists between parties in a fixed-term period employment contract. Hence, at the expiration of the mutually agreed fixed term, the employment relationship ended and the employee cannot claim regularity of employment. *Article 281- Probationary Employment- Probationary employment shall not exceed 6 months from the date the employee started working, unless it is covered by an apprenticeship agreement or stipulating a longer period. 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 accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. *Reasonable Business Necessity Rule The termination must be just and reasonably necessary for the continued operation of business. SC ruled that said policy failed to comply with the standard of reasonableness which is being followed in our jurisdiction. The cases of instruct that the requirement of reasonableness must be clearly established to uphold the questioned employment policy. The employer has the burden to prove the existence of reasonable business necessity. *Abandonment is a form of neglect of duty and a just cause of termination under Art.282 of the Labor Code. -Requisites1. The employee must have failed to report for work or must have been absent without valid or justifiable reason; 2. There must have been a clear INTENTION on the part of the employee to sever the employeremployee relationship manifested by some OVERT ACT. *Authorized Causes for Termination As distinguished from dismissal due to just cause, in termination due to authorized causes, the employee has not committed any wrongful act. It is valid because the law itself authorizes the termination. -Grounds1. Installation of labor-saving devices; 2. Redundancy; 3. Retrenchment; 4. Closure or cessation of business operation of an established or an undertaking. *An employee lawfully dismissed for a just cause is not entitled to any separation pay; while an employee for an authorized cause is entitled to separation pay in accordance with the rates prescribed by law. *Redundancy- exist when the service of an employee are in excess of what is reasonably demanded by the actual requirement of the enterprise;

-a position is redundant where it is superfluous and superfluity of a position or positions may be the outcome of a number of factors. *Hobson’s Choice- means no choice at all; a choice between accepting what is offered or having nothing at all. Thus, where the employees, even if given the option to retire, be retrenched, or dismissed, were made to understand that they had no choice but to leave the company. They either had to voluntarily retire, be retrenched with benefits or be dismissed without receiving any benefit at all. All that the employees were offered was a choice on the means or method of terminating their services but never as to the status of their employment. *Distinction between Redundancy and Retrenchment Redundancy exists when the services of an employee are in excess of what is required by an enterprise. Retrenchment is resorted to primarily avoid or minimize business losses. *Retrenchment- it is a reduction in manpower, a measure utilized by an employer to minimize business losses incurred in the operation of its business.

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