How to EFFECTIVELY Fire a Problem Employee
•Transferir como PPTX, PDF•
13 gostaram•1,439 visualizações
"How to EFFECTIVELY Fire a Problem Employee" A seminar prepared and delivered by: Attorney Apollo X.C.S. Sangalang May 15, 2015 Asian Institute of Management (AIM) - Conference Center Makati City
Recomendados
Recomendados
Mais conteúdo relacionado
Mais procurados
Mais procurados (19)
Destaque
Destaque (19)
Semelhante a How to EFFECTIVELY Fire a Problem Employee
Semelhante a How to EFFECTIVELY Fire a Problem Employee (20)
Mais de PoL Sangalang
Mais de PoL Sangalang (17)
Último
Último (20)
How to EFFECTIVELY Fire a Problem Employee
- 4. WATERFRONT CEBU CITY CASINO HOTEL, INC. and MARCO PROTACIO -versus- ILDEBRANDO LEDESMA G.R. No. 197556 March 25, 2015 Supreme Court of the Philippines
- 5. LABOR ARBITER -WINNER- ILDEBRANDO LEDESMA -AWARDS- 1. Suspension and Dismissal were Illegal 2. Reinstatement (without Loss of Seniority Rights) 3. Full Backwages 4. Money Claims (Service Incentive Leave) 5. 10% Attorney’s Fees
- 6. NATIONAL LABOR RELATIONS COMMISSION -WINNER- WATERFRONT et.al. -AWARDS- 1. Reversal of Labor Arbiter’s Decision 2. Dismissal was Valid
- 7. COURT OF APPEALS -WINNER- ILDEBRANDO LEDESMA -AWARDS- 1. Suspension and Dismissal were Illegal 2. Reinstatement (without Loss of Seniority Rights) 3. Full Backwages 4. Money Claims (Service Incentive Leave) 5. 10% Attorney’s Fees
- 8. SUPREME COURT -WINNER- WATERFRONT et.al. -AWARDS- 1. Reversal of Court of Appeal’s Decision 2. Reinstatement of the NLRC’s Decision 3. Dismissal was Valid
- 9. Hi! I’m PoL Sangalang +63 917 821 6848
- 11. OFFICER OF THE COURT and MEMBER OF THE BAR
- 13. OWNER and PARTNER of a LAW FIRM
- 14. BROADCASTER
- 17. UNIVERSITY LEGAL COUNSEL University of the Philippines
- 18. EXECUTIVE DIRECTOR National Labor Relations Commission
- 19. CHIEF LEGISLATIVE OFFICER Senate of the Philippines
- 25. This seminar is INTERACTIVE. And yes, I mean it!
- 26. • No lawyer-client relationship. • Consult your own legal counsel. • Remember: legal opinions differ. • Respect the sub judice rule. • Avoid conflicts of interest.
- 28. 3 Key Words • EFFECTIVELY terminate • PROBLEM employee • COSTLY illegal dismissal case
- 29. 3 WAYS to Terminate • Efficient. • Legal. •Effective.
- 30. 3 PROBLEM Employees • Article 296 Labor Code. • Causes Analogous. • You CAN’T fire… (yet).
- 31. 3 COSTLY Reasons • Monetary Costs. • Non-Monetary Costs. • Costly Risks.
- 32. 3 COSTLY Risks • Reinstatement. • Backwages. • Damages.
- 33. 3 Hidden Monetary COSTS • Direct Costs of Litigation. • Indirect Costs of Litigation. • Business Losses.
- 34. EFFICIENT WAY
- 36. Limitation No. 1 • Article 291 paragraph 2, Labor Code • (Formerly Article 277)
- 37. Limitation No. 2 • Article 4, Labor Code
- 38. Full Protection Equation Burden of Proof All Doubts E.A.P.G.
- 39. LEGAL WAY
- 40. LEGAL WAY • Substantive Due Process. • Procedural Due Process. • Substantial Evidence.
- 41. Substantive Due Process • Just Cause • Reasonableness • Good Faith Procedural Due Process • Notice to Explain • Notice of Hearing • Notice of Termination Substantial Evidence • Proof of Substantive Due Process • Proof of Procedural Due Process • Proof of Good Faith LEGAL WAY
- 43. BILLY M. REALDA -versus- NEW AGE GRAPHICS, INC. and JULIAN I. MIRASOL, JR. G.R. No. 192190 April 25, 2012 Supreme Court of the Philippines
- 44. LABOR ARBITER -WINNER- BILLY REALDA -DECISION- DISMISSAL WAS ILLEGAL!!!
- 45. NATIONAL LABOR RELATIONS COMMISSION -WINNER- BILLY REALDA -DECISION- 1. Affirmed Labor Arbiter’s Decision. 2. Dismissal was ILLEGAL.
- 46. COURT OF APPEALS -WINNER- NEW AGE GRAPHICS, et.al. -DECISION- 1. Reversed NLRC’s Decision. 2. Dismissal was VALID. 3. But there’s VIOLATION of PROCEDURAL DUE PROCESS.
- 47. SUPREME COURT -WINNER- NEW AGE GRAPHICS, et.al. -DECISION- 1. Affirmed Court of Appeal’s Decision. 2. Dismissal was Valid. 3. But there’s VIOLATION of PROCEDURAL DUE PROCESS.
- 48. Substantive Due Process • Just Cause • Reasonableness • Good Faith Procedural Due Process • Notice to Explain • Notice of Hearing • Notice of Termination Substantial Evidence • Proof of Substantive Due Process • Proof of Procedural Due Process • Proof of Good Faith LEGAL WAY
- 49. Substantive Due Process • Just Cause. • Reasonableness. • Good Faith.
- 50. 3 PROBLEM Employees • Article 296 Labor Code. • Causes Analogous. • You CAN’T fire… (yet).
- 51. Article 296*, Labor Code 1. Serious misconduct; 2. Willful disobedience (or insubordination); 3. Gross and habitual neglect of duties; 4. Fraud; 5. Willful breach of trust; and 6. Crime against person of the employer or his immediate family or representatives.
- 52. Causes Analogous 1. Loss of trust and confidence; 1. Gross negligence resulting in grave consequences; 1. Inefficiency or incompetence without improvement;
- 53. Causes Analogous 4. Habitual commission of minor offenses; 5. Unfit for continued employment based on the “Totality of Infraction” doctrine. 6. Company Policy;
- 54. Company Policy • Causes Analogous is the LEGAL BASIS for employers to create or customize special and specific offenses penalized by termination. • Offenses must have the same gravity as the offenses in Article 296. • Must be written, well defined, justifiable and properly circulated.
- 55. Problem Employees You CAN’T Fire…(yet) 1. No JUST CAUSE; 1. Dismissal would be UNREASONABLE; 1. Employer in BAD FAITH;
- 56. Substantive Due Process • Just Cause • Reasonableness • Good Faith Procedural Due Process • Notice to Explain • Notice of Hearing • Notice of Termination Substantial Evidence • Proof of Substantive Due Process • Proof of Procedural Due Process • Proof of Good Faith LEGAL WAY
- 57. Substantive Due Process • JUST CAUSE: –based on Article 296*, Labor Code. –based on “Causes Analogous”. • Jurisprudence • Company Policy –must overcome: “Security of Tenure.”
- 58. Article 296*, Labor Code 1. Serious misconduct; 2. Willful disobedience (or insubordination); 3. Gross and habitual neglect of duties; 4. Fraud; 5. Willful breach of trust; and 6. Crime against person of the employer or his immediate family or representatives.
- 59. Causes Analogous 1. Loss of trust and confidence; 1. Gross negligence resulting in grave consequences; 1. Inefficiency or incompetence without improvement;
- 60. Causes Analogous 4. Habitual commission of minor offenses; 5. Unfit for continued employment based on the “Totality of Infraction” doctrine. 6. Company Policy;
- 61. Company Policy • Causes Analogous is the LEGAL BASIS for employers to create or customize special and specific offenses penalized by termination. • Offenses must have the same gravity as the offenses in Article 296. • Must be written, well defined, justifiable and properly circulated.
- 62. Substantive Due Process • REASONABLENESS: –Penalty is proportionate to the offense. –Company Policy is NOT against Law or Public Policy. –Offense is business-related or employment-connected.
- 63. Substantive Due Process • GOOD FAITH: –Good faith is presumed. –Bad faith must be proven. –But in labor law, it’s the reverse! •Because ALL DOUBTS favor employees!
- 64. 3 COSTLY Risks when violating: Substantive Due Process • Reinstatement. • Backwages. • Damages.
- 65. COSTLY Risks: DAMAGES • Moral Damages • Exemplary Damages • 10% Attorney’s Fees • Legal Interest
- 66. COSTLY Risks: REINSTATEMENT • Actual Reinstatement –Final –Pending Appeal • Payroll Reinstatement • Separation Pay (in lieu of)
- 67. Substantive Due Process • Just Cause • Reasonableness • Good Faith Procedural Due Process • Notice to Explain • Notice of Hearing • Notice of Termination Substantial Evidence • Proof of Substantive Due Process • Proof of Procedural Due Process • Proof of Good Faith LEGAL WAY
- 68. Procedural Due Process • Notice to Explain. • Notice of Hearing. • Notice of Termination.
- 69. Procedural Due Process • NOTICE TO EXPLAIN: – Describes the who, what, when, where, why and the how much or what manner the offense was committed. – Gives employee at least 5 DAYS to submit a written explanation. – Specifies TERMINATION as possible penalty, if found guilty.
- 70. Procedural Due Process • NOTICE OF HEARING: –Gives opportunity to the employee to verbally explain his side and present his evidence and witnesses. –States that he has right to be assisted by a representative or counsel of his own choice. –Ideally, should lay down the procedure.
- 71. Procedural Due Process • NOTICE OF TERMINATION: –Summarizes what happened since the start of the disciplinary process. –Enumerates the basis of the decision. –States the verdict clearly, including monetary liability (if any); and advises employee of the next step.
- 72. COSTLY Risk when violating: Procedural Due Process • Nominal Damages: PhP30,000
- 73. Substantive Due Process • Just Cause • Reasonableness • Good Faith Procedural Due Process • Notice to Explain • Notice of Hearing • Notice of Termination Substantial Evidence • Proof of Substantive Due Process • Proof of Procedural Due Process • Proof of Good Faith LEGAL WAY
- 74. Substantial Evidence • Proof of substantive due process. • Proof of procedural due process. • Proof of good faith.
- 75. Substantial Evidence • PROOF of SUBSTANTIVE DUE PROCESS: – Employee committed a valid Offense. • Affidavits and Testimonies. • Admissions. • Supporting Documents. • Object Evidence.
- 76. Substantial Evidence • PROOF of PROCEDURAL DUE PROCESS: –Notices were written and served. • Personal service. • Substituted service. –Hearings were recorded. • Attendance. • Minutes.
- 77. Substantial Evidence • PROOF of GOOD FAITH: –Show the effect of the offense on the organization or on the business. –Show that you walked the Extra Mile. • Because employers have the BURDEN OF PROOF*. • Because ALL DOUBTS favor the employees.
- 78. Substantive Due Process • Just Cause • Reasonableness • Good Faith Procedural Due Process • Notice to Explain • Notice of Hearing • Notice of Termination Substantial Evidence • Proof of Substantive Due Process • Proof of Procedural Due Process • Proof of Good Faith LEGAL WAY
- 79. EFFECTIVE WAY • Legal Way isn’t enough. Why? • Because… – Filing labor complaint is easy and free; – Employee who felt mistreated will try to vindicate himself or get even; – Guilty employee will try to save face; – Lawyers, paralegals, and labor leaders accept contingency fees.
- 80. EFFECTIVE WAY Make your employee fire HIMSELF!
- 81. EFFECTIVE WAY
- 83. EFFECTIVE WAY
- 84. How do you say?... “I LOVE YOU but YOU’RE FIRED!” D.O.C.U.M.E.N.T.© 2013 GOOD FAITH
- 85. How to D.O.C.U.M.E.N.T. © 2013 D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand Labor Law principles. M aster HR. E mbrace best practices: Progressive Discipline N egotiate, negotiate, negotiate!!! T ake advice only from experts.
- 86. Best Practices • Progressive Discipline. • Performance Agreement. • Performance Improvement Plan.
- 87. Best Practices • Probationary Employment. • Performance Appraisal. • Code of Ethics.
- 88. Ethical Best Practice • Law on Human Relations –“Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.” –Article 19, Civil Code
- 89. Ethical Best Practice • Rotary Code of Conduct: –“Be fair in all dealings with others and treat them with the respect due to them as fellow human being.”
- 90. 1. Is it the TRUTH? 2. Is it FAIR to all concerned? 3. Will it build GOODWILL and BETTER FRIENDSHIPS? 4. Will it be BENEFICIAL to all concerned?
Notas do Editor
- Ildebrando Ledesma was the House Detective at Waterfront Hotel in Cebu City. Christe Mandal was a supplier of a concessionaire of the hotel. Rosanna Lofranco was an applicant for a job at the hotel. Christe and Rosanna filed complaints against Ildebrando, and on the basis of their AFFIDAVITS and TESTIMONIES during administrative hearings conducted by the hotel management, he was dismissed from employment. The hotel management was able to establish that, among others, Ildebrando KISSED and MASHED the breasts of Christe in the hotel’s elevator. And he was also found to have EXHIBITED his penis and asked Rosanna to masturbate him at the hotel’s conference room. This was after he was able to delude or trick Rosanna to perform a massage on him inside the said conference room. Thus, on August 12, 2008, Ildebrando filed with the office of the LABOR ARBITER a complaint for illegal dismissal against the hotel.
- On April 29, 2009, the LABOR ARBITER rendered an decision in favor of Ildebrando on the ground that the charges against him appears to be mere concoctions (or merely manufactured or invented). About ten (10) months have elapsed from the suspension of Ildebrando up to the promulgation of the LA’s decision. IF his salary is P30,000, then his backwages would be P300,000 (= P30,000 x 10 months). The LA awarded service incentive leave pay to him in the amount of almost P4,000. The 10% attorney’s fee would be P30,400 (=P304,000 x 10%).
- On November 27, 2009, the NLRC rendered a Decision reversing the LA’s Decision. From April 29, 2009 to November 27, 2009, the time that have elapsed is SEVEN (7) months. The payroll reinstatement pay of Ildebrando would be (P30,000 x 7 =) P210,000.
- On March 17, 2011, the CA rendered a Decision reversing the NLRC and reinstating the LA’s Decision. On June 21, 2011, the CA denied the Motion for Reconsideration of Waterfront. From the date of suspension up to the date of the CA’s Resolution denying the MR of Waterfront, about THIRTY-SEVEN (37) months have elapsed. The backwages PLUS payroll reinstatement pay of Ildebrando would then be (37 months x P30,000 =) P1,110,000
- On March 25, 2015, the SC rendered a Decision reversing the CA’s Decision and reinstating the NLRC’s Decision. Despite his loss, Ildebrando would still be entitled to payroll reinstatement pay reckoned from the date of the LA’s Decision (April 29, 2009) up to March 25, 2015, which is about SIX (6) years or SEVENTY-TWO (72) months. His payroll reinstatement pay would be (72 months x P30,000 =) P2,160,000. However, if I were lawyer for Waterfront, I would argue that his payroll reinstatement pay should be reckoned up to November 27, 2009 only. From April 29, 2009 to November 27, 2009, the time that have elapsed is SEVEN (7) months. The payroll reinstatement pay of Ildebrando would be (P30,000 x 7 =) P210,000.
- Signed the Roll of Attorneys in May 1995. Became Chapter President of the IBP – Pasay, Paranaque, Las Pinas and Muntinlupa Cities Chapter: 2 years. From 2007 to 2009.
- 1997 -1998 Almost 2 years
- 2003 – 2006 At least 3 years
- 2006 – 2007 Almost 2 years Became LAW PROFESSOR at the Philippine Law School in Pasay City: 4 Semesters Became Chapter President of the IBP – Pasay, Paranaque, Las Pinas and Muntinlupa Cities Chapter: 2 years.
- My advocacy is LABOR LAW MADE EASY. My goal is to be YOUR DAILY LABOR LAW IN SACHETS. Labor law applies to all employers, whether you’re big or small. Labor law applies to all employees, whether you’re a highly paid executive (P1,333,333 per day) or an unskilled minimum wage earner doing menial jobs. The law has identified the so-called vulnerable workers. Unfortunately, the law has not identified the vulnerable businesses. WHO HAS FACEBOOK ACCOUNTS?
- Formerly Article 282, Labor Code.
- McBurnie vs. Ganzon, et. al., GR Nos. 178039, etc., October 17, 2013 (Resolution): 1. Andrew James McBurnie is an Austraiian with NO Alien Employment Permit and NO Working Visa. He was awarded P60 million in salary compensation. 2. Eulalio Ganzon, of E. Ganzon Inc. and EGI Managers, Inc. These are Ganzon’s construction company and real estate development company. 3. Baguio Hotel project. It never took off for lack of funding. 4. Letter dated May 11, 1999. 5. Employment Contract dated May 11, 1999. 5-year term. Position: Executive Vice President of EGI 6. Contract states that McBurnie is entitled to housing benefits and a service vehicle. He was allowed to stay at Unit #812 Makati Cinema Square Condominium. He was allowed to use a Hyundai car. 7. November 17, 2009, McBurnie left for Australia and never came back since. He never personally appeared before the LA, NLRC, and CA. 8. McBurnie worked from September 1, 1999 until he met an accident on the last week of October 1999. This was for about 2 months (actually 45 days). 9. McBurnie filed an illegal dismissal case against Ganzon in 2002 (almost 3 years after he left the Philippines). 10. On September 18, 2009, the Supreme Court ruled in favor of McBurnie. It overturned the decisions of the NLRC and the CA favoring Ganzon. The ruling was based on a technicality regarding the appeal bond and the perfection of appeal. In January 25, 2012, it upheld its decision and denied the MR filed by Ganzon. 11. The 2009 NLRC’s and 2008 CA’s ruling was that McBurnie is not an employee but merely a business partner of EGI in the Baguio Hotel project (which didn’t materialize). 12. The LA Salimathar Nambi ruled in favor of McBurnie, adjudged him as illegally dismissed and awarded him backwages and damages etc. amounting to P60 million in 2004. 13. Ganzon timely filed an appeal with a motion to reduce the appeal bond. He posted a bond of P10 million which was deemed sufficient by the NLRC. 14.Ganzon cannot be held personally liable except when there is reason to hold him liable.
- Appeal Bond Professional Fee Out-of-pocket expenses
- Formerly Article 277, paragraph 2, Labor Code.
- Formerly Article 277, paragraph 2, Labor Code.
- E.A.P.G. = Employers Are Presumed Guilty! Article XIII, Section 3, Constitution: The State shall afford FULL PROTECTION to labor, local and overseas, organized and unorganized…
- The LA found New Age Graphics to be in BAD FAITH. BILLY filed a complaint against NEW AGE GRAPHICS which led to the findings of labor standards and tax violations on the part of the employer.
- New Age only gave Billy 24 hours to submit his written explanation as per NTE. The administrative hearing was scheduled on the same day that the NTE was served on Billy. No written Notice of Termination was prepared by New Age Graphics and sent to Billy’s last known address. Even if New Age Graphics was in BAD FAITH there is substantial evidence that Billy deserves to be terminated. Billy was found to have committed WILLFUL DISOBEDIENCE in relation to rendering overtime work and complying with work standards. Billy was also found to be habitually tardy and absent from work. In addition, Billy was held to be guilty of INEFFICIENCY. According to the SC: “Failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the alloted reasonable period, or by producing unsatisfactory results.”
- SC increased the NOMINAL DAMAGES from P5,000 to P30,000.
- Formerly Article 282, Labor Code.
- Formerly Article 282, Labor Code.
- Formerly Article 282, Labor Code.
- Formerly Article 282, Labor Code.
- Article 291, 2nd Paragraph, Labor Code (formerly Article 277):