Security of Tenure

1. The right of an employee to be protected against unlawful

termination

2. Therefore an employee cannot be terminated except for

just or authorized causes

Legal Basis: Section 3, Article XIII of the 1987 Constitution

(Social Justice and Human Rights)
 Security of Tenure

Is the right to security of tenure granted

only to regular employees?

NO. Probationary employees and fixed-term employees also have the right to security
of tenure.

• Fixed term employees enjoy tenure during the period/duration of their employment.

• This means that an employee under a fixed-term contract may only be terminated prior
to the expiration of the term of employment provided in the contract for cause as
provided in the Labor Code, otherwise the termination will be considered illegal.
 Security of Tenure

Probationary employees, under Philippine labor laws and

jurisprudence, may only be terminated by the employer for just or
authorized causes (as provided under Articles 297 to 299 of the Labor
Code) or when said probationary employee fails to qualify as a
regular employee in accordance with reasonable standards made
known to the employee at the time of his engagement.
 The Life of an Employee

Pre-Employment Employment Proper Post-Employment

• Probationary Period
• Rights of probationary
employee
• Cause/s for termination of
probationary employees
• Other employment
arrangements
• Employee benefits / labor
standards
• Conditions of Employment
• Security of tenure
• Termination by employee
• Termination by employer
• Just and authorized causes
for termination
• Due process in termination
• Retirement Pay
Termination of Employment by the Employer

“Article 297. An employer may terminate an employment for any of the

following just causes:
a. Serious misconduct or willful disobedience by the employee of the
lawful orders of his employer or representative in connection with his
work;
b.Gross and habitual neglect by the employee of his duties;
c. Fraud or willful breach by the employee of the trust reposed in him
by his employer or duly authorized representative;
d.Commission of a crime or offense by the employee against the
person of his employer or any immediate member of his family or his
duly authorized representative; and
e.Other causes analogous to the foregoing.”
 Serious Misconduct
To be a valid ground for termination, the following must be
present:
1.There must be misconduct;
• Misconduct refers to the transgression of some established and
definite rule of action, a forbidden act, a dereliction of duty, willful
in character and implies wrongful intent and not mere error in
judgment.
2.The misconduct must be of such grave and aggravated
character;
3.It must relate to the performance of the employee’s duties;
and
4.There must be showing that the employee becomes unfit to
continue working for the employer.
 Examples of Serious Misconduct
• Fighting within company premises
• Uttering obscene, insulting, or offensive words against a
superior
• Fabrication of time records
• Using employer’s property equipment and personal business
of the employee
• Gambling or engaging in sexual intercourse inside the company
premises
• Intoxication, drunkenness, disorderly behavior while in the
workplace
• Sexual harassment (D.O. 147-15, Sec. 6)
 Willful Disobedience
To be a valid ground for termination, the following
must be present:
1.There must be disobedience or insubordination
2.The disobedience or insubordination must be willful
or intentional characterized by a wrongful and
perverse attitude;
3.The order violated must be reasonable, lawful, and
made known to the employee; and
4.The order must pertain to the duties which he has
been engaged to discharge.
Examples of Willful Disobedience
• Refusal to transfer
• Refusal to report to new work assignment
• Violation of rules against gambling
• Violation of prohibition against unauthorized
use of company property
• Violation of rule against encashment of check
 Gross and Habitual Neglect of Duties
To be a valid ground for termination, the following must be present:
1.There must be neglect of duty; and
2.The negligence must be both gross and habitual in character.
• The element of habituality may be disregarded where the loss resulting
from the negligent act is substantial.

Gross Neglect = absence of that diligence that an ordinary prudent

man would use in his/her own affairs

Habitual Neglect = repeated failure to perform one’s duties over a

period of time, depending upon the circumstances
 Examples of Gross and Habitual Neglect of
Duties
• Habitual tardiness

• Absenteeism

• Abandonment

• Misappraisal by an appraiser of value of real

property
 Fraud or Willful Breach of Trust
To be a valid ground for termination, the following
must be present:
1.There must be an act, omission, or concealment;
2.The act, omission or concealment involves a breach
of legal duty, trust, or confidence justly reposed;
3.It must be committed against the employer or
his/her representative; and
4.It must be in connection with the employees' work.
 Loss of Confidence
To be a valid ground for termination, the following must be present:
1.There must be an act, omission, or concealment;
2.The act, omission or concealment justifies the loss of trust and
confidence of the employer to the employee;
3.The employee concerned must be holding a position of trust and
confidence;
4.The loss of trust and confidence should not be simulated;
5.It should not be used as a subterfuge for causes which are
improper, illegal, or unjustified; and
6.It must be genuine and not a mere afterthought to justify an
earlier action taken in bad faith
 Examples of Fraud or Willful
Breach of Trust
• Head supervisor initiating and leading a boycott
• Habitual absence of managerial employee
• Failure of cashier to account for shortage of company
funds
• Complicity in the attempt to cover up pilferage of the
company’s toll collections
• Stealing company property
• Using double or fictitious requisition slips in order to
withdraw company materials
 Q: What is a position of trust and confidence?

A: There are two classes of corporate positions of trust:

1.Managerial employees whose primary duty consists of the
management of the establishment in which they are
employed or of a department or a subdivision thereof, and
other officers or members of the managerial staff;
2.Fiduciary rank-and-file employees, such as cashiers,
auditors, property custodians, or those who, in the normal
exercise of their functions, regularly handle significant
amounts of money or property.
• These employees, though rank-and-file, are routinely charged with
the care and custody of the employer's money or property, and are
thus classified as occupying positions of trust and confidence.
 Examples
Managerial Employee – GM of a hotel who withdraws
amounts from hotel funds; requisitioning wines and
beverages for his personal use

Cashiers – under-punching

Bank tellers – encashment of checks without the proper

approvals

Engineer – construction defects in the projects he supervises

Q: What is the difference between loss of trust and confidence on a rank-and-
file employee and loss of trust and confidence on a managerial employee?

A: “With respect to rank-and-file personnel, 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 be sufficient.
But as regards a managerial employee, the mere existence of a basis for
believing that such employee has breached the trust of his employer would
suffice for his dismissal.
Hence, in the case of managerial employees, proof beyond reasonable doubt
is not required, it being sufficient that there is some basis for such loss of
confidence, such as when the, employer has reasonable ground to believe that
the employee concerned is responsible for the purported misconduct, and the
nature of his participation therein renders him unworthy of the trust and
confidence demanded of his position.” (Lourdes School of Quezon City vs.
Garcia, G.R. No. 213128, 07 February 2018)
 Commission of a Crime or Offense
To be a valid ground for termination, the following must be present:
1.There must be an act or omission punishable or prohibited by
law; and
2.The act or omission was committed by the employee against the
person of
1.employer,
2.any immediate member of his/her family, or
3.his/her duly authorized representative.

Note that conviction for the crime or offense committed by the

employee is not essential to terminate employment.
 Examples
• Illegally diverting employer’s products
• Violation of company rules and regulations
• Drunkenness
• Gross inefficiency
 Other Analogous Causes
To be valid ground for termination, the following must be present:
1.There must be act or omission similar to those specified just causes; and
2.The act or omission must be voluntary and/or willful on the part of the employees.

No act or omission shall be considered as analogous cause unless expressly

specified in the company rules and regulations or policies.

• Sexual Harassment
• Considered a serious misconduct.
• Acts of Dishonesty
• Commission of an act of dishonesty may constitute serious misconduct or fraud or willful
breach of trust or specific provisions of the company’s rules and regulations and code of
conduct
• Examples: theft or pilferage of company property, falsification of time cards, punching in of
time cards of other employees
 Other Analogous Causes

• Abandonment of work: This is a form of neglect of duty. Mere

absence is not sufficient. The employer has the burden of proof
to show the deliberate and unjustified refusal of the employee
to resume his employment without any intention of returning.

• To establish abandonment, the following must be present:

• Failure on the part of the employee to report for work or absence
without valid or justifiable reason; and
• Clear intention on the part of the employee to sever the
employer-employee relationship.
Q: What circumstances are considered “mitigating” by the
Supreme Court in cases of theft of company-owned property
which may lessen the penalty imposable?

A:
• Absence of derogatory record of the employee in his
years of service;
• Minimal value of the property;
• The employee is not a managerial or confidential
employee in whom greater trust is placed by
management;
• Failure of the company to establish that employee’s act
is inimical to its interest or has prejudiced its business
 Anti-Sexual Harassment Act of 1995
Republic Act No. 7877

Sexual Harassment in the Workplace,

Education or Training Environment
 What is Sexual Harassment?
• Sexual harassment is committed by an employer, employee,
manager, supervisor, agent of the employer, teacher, instructor,
professor, coach, trainor, or any other person who having authority,
influence or moral ascendancy over another in a work or training
or education environment demands, requests or otherwise requires
any sexual favor from the other, regardless of whether the
demand, request or requirement for submission is accepted by the
object of said act.
• (Section 3, RA 7877)
 Sexual Harassment:

Sexual harassment in the workplace is not about a man

taking advantage of a woman by reason of sexual
desire; it is about power being exercised by a superior
officer over his women subordinates. The power
emanates from the fact that the superior can remove
the subordinate from his workplace if the latter
would refuse his amorous advances.(Floralde et al vs.
CA, 2000)
PMFSL Labor Law Lecture Series
There is Sexual Harassment in a work-related or employment
environment when:

a) The sexual favor is made as a condition in the hiring or in the

employment, re-employment or continued employment of an employee,
or in granting said employee favorable compensation, terms, conditions,
promotions, or privileges;

b) The refusal to grant the sexual favor results in limiting, segregating or

classifying the employee which in any way would discriminate, deprive or
diminish employment opportunities or otherwise adversely affect said
employee;

c) The above acts would impair the employee’s rights or privileges under
existing labor laws

d) The above acts would result in an intimidating, hostile, or offensive

environment for the employee
 There is sexual harassment:
(When) severely abusive and outrageous acts (are committed), which
are an affront to women, (such acts) unmistakably constitute sexual
harassment because they necessarily result in an intimidating,
hostile, or offensive environment for the employees.
(Dawa et al., vs. Judge Asa, A.M. No. MTJ-98-1144, 22 July 1998)
 Forms of Sexual Harassment

Sexual Harassment may be committed:

• In or outside the office building

• At office or training related functions

• In the course of work assignments outside the office

• At work-related conferences, studies or training sessions

• During work-related travel

 Forms of Sexual Harassment

• Overt sexual advances (touching of sensitive body parts, kissing)

• Unwelcome or improper gestures of affection
• Request or demand for sexual favors like going out on dates, outings or
the like for the same purpose
• Any other act or conduct of a sexual nature or for purposes of sexual
gratification which is generally annoying, disgusting or offensive to the
victim
• Note that the act may be written, oral or physical; it may be subtle and
indirect or blatant or overt.
Cases where there was sexual harassment
1. Dawa et al., vs. Judge Asa: overt acts of kissing, hugging, touching of body
parts
2. 2. Madredijo vs. Judge Loyao, Jr.: no physical advances were made but
superior would talk to his subordinate in a suggestive manner (i.e., asking
for a date)
3. Simbajon vs. Judge Esteban: approving an application in exchange for a
relationship; kissing
4. Floralde et al., vs. CSC and Resma: suggestive language, pinching, touching
of body parts
5. Philippine Aeolus vs. NLRC and Cortez: unwanted attention, special
treatment
Cases where there was no sexual harassment

1. Atty Aquino vs. Judge Acosta:A mere casual buss on the cheek is not a sexual
conduct or favor and does not fall within the purview of sexual harassment
under R.A. No. 7877.

• Indeed, from the records on hand, there is no showing that respondent judge
demanded, requested or required any sexual favor from complainant in
exchange for "favorable compensation, terms, conditions, promotion or
privileges" specified under Section 3 of R.A. 7877. Nor did he, by his
actuations, violate the Canons of Judicial Ethics or the Code of Professional
Responsibility.
• What we perceive to have been committed by respondent judge are casual
gestures of friendship and camaraderie, nothing more, nothing less. In
kissing complainant, we find no indication that respondent was motivated by
malice or lewd design. Evidently, she misunderstood his actuations and
construed them as work-related sexual harassment under R.A. 7877.
 Who are liable for Sexual Harassment?

In a work-related or employment environment:

- It is the employer, employee, manager,

supervisor, agent of the employer
- Has authority, influence or moral ascendancy
over employee
- Demands, requests or otherwise requires any
sexual favor regardless of whether such are
accepted
 Who are liable for Sexual Harassment?

Also –

Any person who directs or induces another to

commit any act of sexual harassment

OR

Any person who cooperates in the commission

thereof without whose cooperation the act of sexual
harassment would not have been committed
 What are the duties of the employer or head of
office?
It is the DUTY of the EMPLOYER or HEAD OF OFFICE to:

1. Prevent or Deter the commission of acts of sexual harassment;

2. Provide the procedures for the resolution, settlement or prosecution of

acts of sexual harassment; and

3. Disseminate or post a copy of the Anti-Sexual Harassment Act for the

information of all concerned.
 What are the duties of the employer or head of
office?

Specifically, the employer/head of office is required under the law –

1. To promulgate rules and regulations prescribing the procedure for the

investigation of sexual harassment cases in the workplace or
educational/training institution and the appropriate, commensurate
administrative sanctions

• These rules/regulations may constitute the Anti-Sexual Harassment

Policy of the Company/ Employer

• The rules and regulations shall also include guidelines on proper

decorum in the workplace or educational /training institution
What are the duties of the employer or head of
office?

2. To create a committee on decorum and investigation

of cases on sexual harassment.

a. Members of the committee:

Workplace: At least one (1) representative each from the

management, the union, if any, the employees from the
supervisory rank, and from the rank and file employees.
 What are the duties of the employer or head of
office?

b.Functions of the committee:

• Conduct meetings with officers and

employees to increase understanding and
prevent incidents of sexual harassment

• Receive complaints of sexual harassment and

conduct the investigation of alleged cases
constituting sexual harassment
 What can the individual do if he/she is a victim of sexual
harassment?

1. At the workplace/educational or training institute level:

• Seek administrative sanctions against the offender

• This would mean filing a complaint with your employer/committee,

submitting evidence (sworn affidavits), undergoing investigation

• Administrative sanctions shall not be a bar to prosecution in proper

courts for sexual harassment
 What can the individual do if he/she is a victim of sexual
harassment?

2. Seek remedies from courts:

a. Independent action for damages

The employer may be held solidarily liable for damages for acts of
sexual harassment committed at the workplace if the employer is
informed of such acts by the offended party and no immediate action
is taken by the employer.
What can the employee do if he/she is a victim of sexual
harassment?

b. Criminal case for sexual harassment

A person found by the court to have violated the anti-sexual harassment

act shall be penalized by imprisonment (not less than one month and not
more than six months) or fine (not less than P10,000 nor more than
P20,000), or both imprisonment and fine, should the court so decide.

Note that any action arising from sexual harassment prescribes in three (3)
years.
 Is the timing material?

1. Libres vs. NLRC (1999 case) - RA 7877 was not made applicable; a period
of one year elapsed from the date of incident complained of and the filing
of an administrative complaint

2. Philippine Aeolus vs. NLRC (2000) - Complainant took 4 years to complain

but court still held that her claims are believable.
“The gravamen of the offense in sexual harassment is not the violation of
the employee's sexuality but the abuse of power by the employer. Any
employee, male or female, may rightfully cry "foul" provided the claim is
well substantiated. Strictly speaking, there is no time period within
which he or she is expected to complain through the proper channels.
The time to do so may vary depending upon the needs, circumstances,
and more importantly, the emotional threshold of the employee.”
 Is timing….
3. Digitel vs. Soriano (2006): The criminal complaints were filed
two years after the first alleged occurrence and 11 months after
her resignation.
• While, as this Court stated in Philippine Aelous, there is,
strictly speaking, no fixed period within which an alleged
victim of sexual harassment may file a complaint, it does not
mean that she or he is at liberty to file one anytime she or he
wants to. Surely, any delay in filing a complaint must be
justifiable or reasonable as not to cast doubt on its merits.
• Any employee, male or female, may charge an employer or
superior with sexual harassment, but the claim must be well
substantiated. As reflected above, however, employee’s claim
does not pass the test of credibility.
 Some points to remember:
1. A job applicant may be a victim of sexual
harassment (Dr. Rico Jacutin vs. People of the
Philippines, March 6, 2002)

2. That there is sexual harassment even if the

sexual offer was not accepted

3. Sexual harassment is not age specific; is not

gender specific
 Preventive Suspension

• Preventive suspension is not a penalty; it is a preliminary step in

an administrative investigation.
• Period of preventive suspension: Thirty (30) days without pay
 
Legal Basis: Sections 8 and 9, Rule XXIII, Book V, Rules to
Implement the Labor Code
 
Sec. 8. Preventive suspension. -- The employer may place the
worker concerned under preventive suspension if his continued
employment poses a serious and imminent threat to the life
or property of the employer or of his co-workers. 
 Preventive Suspension

Sec. 9. Period of suspension. -- No preventive suspension shall last longer than

thirty (30) days. The employer shall thereafter reinstate the worker in
his former or substantially equivalent position or the employer may
extend the period of suspension provided that during the period of
extension, he pays the wages and other benefits due to the worker. In
such case, the worker shall not be bound to reimburse the amount
paid to him during the extension if the employer decides, after
completion of the hearing, to dismiss the worker.