Termination of Employment, Schemes and Mind Maps of Law

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Termination of

employment

By: Annabelle Vivien Alonzo

(Part 5 of the Labor

Law Series)

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I. Security of Tenure

A. Categories of employment as to tenure

B. Legitimate Subcontracting vs. Labor-only

Contracting

II. Termination by Employer

III.Termination by Employee

A. Resignation vs. Constructive Dismissal

B. Abandonment

IV. Preventive Suspension

V. Floating Status

VI.Retirement

Employment Categories in the Philippines Based on Tenure Regular Employment Otherwise known as permanent employment, regular employment is when an employee conducts work deemed desirable or necessary by an employer. The primary standard deciding regular employment is the reasonable connection between job performance concerning the organization or its trade. 1 Casual Employment Casual employment is when an employee’s work functions are not considered necessary or primarily related to your business or trade. Typically, casual employees are informed of a specific job timeframe before they start rendering any work. It should be noted that casual employees who have rendered at least a year of service will automatically be regularized, whether the employment is continuous or not. 2 Seasonal Employment Seasonal employees are hired only for a specific time or season. It is a common practice in the retail, food, and industry sectors due to the volume of guests and customers during peak seasons. Additionally, you can negotiate a regular seasonal employee arrangement with workers. During the off- season, employees are temporarily laid off, then re- employed during peak seasons or holidays. 5 Fixed-term Employment Fixed-term or contractual employment is when you hire employees for a job with a set elapsed time. You and a fixed-term employee negotiate contract terms beforehand, and their tenure will automatically be terminated once the contract ends. 6 Work-pool Employees A work-pool is a network of independent workers familiar with your operation that can work on an as-needed basis. It is a flexible extension of your trained workforce that you build over time by rotating a mix of new and familiar workers into your operations for short periods of time. 7 Project Employment Project employment entails hiring employees for a specific project in a set period, depending on the size and scope of the workload. Project employees may be retained and regularized if their work is categorized as necessary, vital, and indispensable to the usual business functions. 4 Probationary Employment Employees under probation go through a trial period to decide if their skills and quality of work are up to par before being regularized. They are granted security of tenure throughout the trial period and cannot be dismissed without authorized or just cause. 3

★ (^) Legitimate job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out with the contractor or subcontractor the performance or completion of a specific job, work, or service within a definite or predetermined period, regardless of whether such job, work, or service is to be performed or completed within or outside the premises of the principal.fits. ★ (^) A person is considered engaged in legitimate job contracting or subcontracting if the following conditions concur:

1. the contractor carries on a distinct and independent business and partakes the contract work on his account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of his work except as to its result;
2. the contractor has substantial capital or investment; and
3. the agreement between the principal and the contractor or subcontractor assures the contractual employees’ entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social welfare benefits. Legitimate Subcontracting vs. Labor- only Contracting

OTHER ANALOGOUS CAUSES COMMISSION OF A CRIME OR OFFENSE Article 282, 283, and 284 of the Labor Code provides an exhaustive list of grounds for termination of employment. The causes that may lead to dismissal will be either personal causes — linked to the employee — or business-related. FRAUD OR WILLFUL BREACH OF TRUST GROSS AND HABITUAL NEGLECT SERIOUS MISCONDUCT ART. 282. TERMINATION BY EMPLOYER An employer may terminate an employment for any of the following causes:

ART. 283. CLOSURE OF ESTABLISHMENT AND REDUCTION OF PERSONNEL An employee can be terminated due to business reasons such as:

1. installation of labor-saving devices;
2. redundancy;
3. retrenchment (reduction of costs) to prevent losses; or
4. the closing or cessation of operation. ART. 284. DISEASE AS GROUND FOR TERMINATION 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, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.

● (^) Constructive dismissal is defined as quitting or cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of pay and other benefits. It exists if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. ● (^) Resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself from employment. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. Constructive dismissal vs. resignation

● (^) To constitute abandonment, 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, with the second element as the more determinative factor and being manifested by some overt acts. abandonment

● (^) Justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer/coworkers. ● (^) Maximum period of suspension is 30 days. ● (^) Preventive suspension is incident to investigation, not in itself a penalty for the offense ● (^) Beyond that, the employee becomes entitled to his pay and benefits and the employer may be required to pay indemnity. PREVENTIVE SUSPENSION

FLOATING STATUS

RETIREMENT

Article 287 of Presidential Decree No.

442 , as amended, otherwise known as the

Labor Code of the Philippines.

Defined: Provision:

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