Firing an Employee: Legally Acceptable Causes (Part 2)
In the first installment of this article, three of the just causes for termination have been extensively discussed. We shall now proceed with the other legally acceptable cause for termination, as well as the inclusion in the “final pay” of a dismissed employee.
Willful Disobedience or Insubordination
Insubordination refers to the refusal to obey a lawful and reasonable order of a superior.[3] The disobedience referred to in this case must be intentional and wrongful in character, and pertaining to an order that is reasonable, lawful and made known to the employee beforehand.[4] Note that company policies are presumed to be valid until declared illegal or improper by a competent authority, and an employee disobeying them does so at his own risk.[5]A good example of this is when, in a watchmaking factory, a lineman originally tasked to attach the jewels in the movement, was assigned instead to make tourbillons, vehemently refused to transfer as it excites him to put rubies in gear trains despite knowing that there is a semiannual job rotation in the factory.[6] Note that failure to answer a memo to explain[7] and refusal to render overtime to meet deadlines[8] constitute willful disobedience as well.
Gross and Habitual Neglect of Duties
A neglect means the failure to observe the standard of care or caution normally observed by individuals.[9] In order for it to be a just cause for termination, it must be both serious and recurring.[10] Taking unannounced leaves of absence for around a week in total in a span of one month, without any valid reason to do so, shall constitute a gross and habitual neglect of duties.[11] Note however that if the absence or tardiness is due to an emergency, ailment of fortuitous event, it may not be cited as a just cause for termination.[12]
A fairly related principle to neglect of duty is abandonment of work. To constitute abandonment, the employee must have failed to report to work without a valid cause and there must have been a clear intention to sever the employer-employee relationship.[13] Mere absence therefore is not enough to constitute abandonment, and the employer shall have the burden of proof to show intent to abandon work.[14] In the previous example, if the employee who was transferred from the department of rubies to the department of gear trains failed to report to work despite constant attempt to reach out for a month, such adequately shows the intent of the employee to abandon his position.
Commission of Crime or Offense
In order for the commission of a crime to be a just cause for termination, the crime must be committed against the employer himself or his representative such as the manager, or any members of their families.[15] By families, it refers to the spouse, ascendants and descendants and brothers and sisters, whether of full or half blood.[16] An example would be making unfounded allegations of theft against the manager by the employee, made public by posting the same in Facebook, which constitutes as libel under the law.
Other Analogous Causes
This is the “catch-all” provision of the Code. Any other acts similar in nature to those stated above may likewise be a ground for dismissal, provided that it is specified in the company rules and regulation and the existing policies of the organization.[17] Thus, violation of company rules and regulations[18] and failure to attain work quota[19] can likewise be a ground for terminating the services of an employee.
Final Pay
If there is indeed a just cause for termination, the employee shall not be entitled to any separation pay, unless the contrary is stated in the company policy or practice. This is but fair as the employee, by his or her own conduct, caused the termination of his employment. His final pay therefore shall consist only of the unpaid proportion of the wages and benefits earned during the time he or she remained working for the company.
While there are times that the employee is, in himself or herself, problematic, many times mistakes and inefficiencies of an employee is a reflection of the company culture and leadership. The lack of concern may sometimes be due existing policies, written or not, which can effectively motivate or demotivate an employee. Talking about policies, in the second installment of this article, we shall be discussing the procedure in terminating an employee due to just cause, as well as his entitlement to last pay, if any. Meanwhile, please join our facebook page below for free legal advice.
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Cover Photo from: The Noun Project
[1] Renato P. Magbalon III, young, dynamic, and a problem-solver lawyer from the University of Santo Tomas Faculty of Civil Law, currently an associate lawyer and business law coach at Sangalang & Gaerlan, Business Lawyers. You may reach him at renato.magbalon@paladinslaw.org. [2] Christian Andrew Labitoria Gallardo is a recent graduate of the Ateneo School of Law with a Juris Doctor degree, and is currently an associate of the Sangalan and Gaerlan, Business Lawyers, a law firm specializing in labor, corporate and business law. You may reach him through a phone call or message (09157042132) or via email (andrew.gallardo@paladinslaw.org). [3] § 4 (j), DO 147-15. [4] § 5.2 (b), DO 147-15. [5] Benguet Electric Cooperative v Fianza, G.R. No 158606 (2004). [6] Sentinel Security Agency v NLRC, G.R. No. 1222468 (1998). [7] Ace Promotion and Marketing Corporation v Ursabia, G.R. No. 197598 (2006). [8] R.B. Michael Press v Galit, G.R. No. 153510 (2008). [9] § 4 (l), DO 147-15 [10] § 5.2 (c), Do 147-15. [11] Labor et al v NRLC, G.R. No. 110388 (2005). [12] PLDT v Teves, G.R. No. 143511 (2010). [13] CRC Agricultural Trading v NLRC, G.R. No. 177664 (2009). [14] Northwest Tourism Corp v Third Division CA, G.R. No. 150591 (2005). [15] § 4 (d), DO 147-15. [16] DO 18 series of 1994. [17] § 5.2 (g) DO 147-15 [18] Sampaguita Auto Transport Corp v NLRC, G.R. No. 197384 (2013). [19] Aliling v Feliciano, G.R. No. 185829 (2012).
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