4.

Before terminating the services of

Termination of an employee, what procedure should
the employer observe?
Employment An employer shall observe procedural
due process before terminating one’s
employment.
1. What is the right to security of 5. What are the components of
tenure? procedural due process?
The right to security of tenure means A. In a termination for just cause, due
that a regular employee shall remain process involves the two-notice rule:
employed unless his or her services are
terminated for just or authorized cause a) A notice of intent to dismiss
and after observance of procedural due specifying the ground for termination,
process. and giving said employee reasonable
opportunity within which to explain his or
2. May an employer dismiss an her side;
employee? What are the grounds?
b) A hearing or conference where the
Yes. An employer may dismiss an employee is given opportunity to
employee on the following just causes: respond to the charge, present evidence
or rebut the evidence presented against
a) serious misconduct; him or her;
b) willful disobedience; c) A notice of dismissal indicating that
upon due consideration of all the
c) gross and habitual neglect of duty; circumstances, grounds have been
established to justify termination.
d) fraud or breach of trust;
B. In a termination for an authorized
e) commission of a crime or offense cause, due process means a written
against the employer, his family or notice of dismissal to the employee
representative; specifying the grounds at least 30 days
before the date of termination. A copy of
f) other similar causes. the notice shall also be furnished the
Regional Office of the Department of
3. Are there other grounds for Labor and Employment (DOLE) where
terminating an employment? What the employer is located.
are they?
6. What is the sanction if the
Yes. The other grounds are authorized employer failed to observe
causes: procedural due process in cases of
legal and authorized termination?
a) installation of labor-saving devices;
In cases of termination for just causes,
b) redundancy; the employee is entitled to payment of
indemnity or nominal damages in a sum
c) retrenchment to prevent losses; of not more than 30,000 pesos (Agabon
vs. NLRC, 442 SCRA 573); in case of
d) closure and cessation of business; termination for authorized causes,
and 50,000 pesos (Jaka Food Processing
vs. Darwin Pacot, 454 SCRA 119).
e) disease / illness.
7. May an employee question the
legality of his or her dismissal?
Yes. The legality of a dismissal may be b) in lieu of reinstatement, an employee
questioned before the Labor Arbiter of a may be given separation pay of one
Regional Arbitration Branch of the month pay for every year of service
National Labor Relations Commission (Golden Ace Builders, et. al vs. Jose
(NLRC), through a complaint for illegal Talde, May 5, 2010, GR No. 187200);
dismissal. In establishments with a
collective bargaining agreement (CBA), c) full backwages, inclusive of
the dismissal may be questioned allowances and other benefits or their
through the grievance machinery monetary equivalent from the time
established under the CBA. If the compensation was withheld up to the
complaint is not resolved at this level, it time of reinstatement;
may be submitted to voluntary
arbitration. d) damages if the dismissal was done in
bad faith (Aurora Land Project Corp. vs
8. In cases of illegal dismissal, who NLRC, 266 SCRA 48).
has the duty of proving that the
dismissal is valid? 12. What is reinstatement?

The employer. Reinstatement means restoration of the

employee to the position from which he
9. Suppose the employer denies or she has been unjustly removed.
dismissing the employee, who has
the duty to prove that the dismissal is Reinstatement without loss of seniority
without valid cause? rights means that the employee, upon
reinstatement, should be treated in
The employee must elaborate, support matter involving seniority and continuity
or substantiate his or her complaint that of employment as though he or she had
he or she was dismissed without valid not been dismissed from work.
cause (Ledesma, Jr. vs. NLRC, 537
SCRA 358, October 19, 2007). When a Labor Arbiter rules for an illegal
dismissal, reinstatement is immediately
10. On what grounds may an executory even pending appeal by the
employee question his or her employer (Article 223 of the Labor
dismissal? Code, as amended).

An employee may question his or her 13. In what forms may reinstatement
dismissal based on substantive or pending appeal be effected?
procedural grounds.
Reinstatement pending appeal may be
The substantive aspect pertains to the actual or by payroll, at the option of the
absence of a just or authorized cause employer.
supporting the dismissal.
14. What is meant by full backwages?
The procedural aspect refers to the
failure of the employer to give the Full backwages refer to all
employee the opportunity to explain his compensations, including allowances
or her side. and other benefits with monetary
equivalent that should have been
11. What are the rights afforded to an earned by the employee but was not
unjustly dismissed employee? collected by him or her because of
unjust dismissal. It includes all the
An employee who is dismissed without amounts he or she could have earned
just cause is entitled to any or all of the starting from the date of dismissal up to
following: the time of reinstatement.

a) reinstatement without loss of seniority

rights;
15. What is separation pay? efficiency and seniority (Asian Alcohol
Corp. vs. NLRC, 305 SCRA 416);
In termination for authorized causes,
separation pay is the amount given to c) A one-month prior notice is given to
an employee terminated due to the employee and DOLE Regional
installation of labor-saving devices, Office as prescribed by law.
redundancy, retrenchment, closure or
cessation of business or incurable 19. May the services of an employee
disease. be terminated due to disease?

Separation pay may also be granted to Yes. The employer may terminate
an illegally dismissed employee in lieu employment on ground of disease only
of reinstatement. upon the issuance of a certification by a
competent public health authority that
16. How much is the separation pay? the disease is of such nature or at such
stage that it cannot be cured within a
In cases of installation of labor-saving period of six months even with proper
devices or redundancy, the employee is medical treatment.
entitled to receive the equivalent of one
month pay or one month for every year 20. What is constructive dismissal?
of service, whichever is higher.
Constructive dismissal refers to an
In cases of retrenchment, closure or involuntary resignation resorted to when
cessation of business or incurable continued employment becomes
disease, the employee is entitled to impossible, unreasonable or unlikely;
receive the equivalent of one month pay when there is a demotion in rank or a
or one-half month pay for every year of diminution in pay; or when a clear
service, whichever is higher. discrimination, insensibility or disdain by
an employer becomes unbearable to an
In case of separation pay in lieu of employee or an unwarranted transfer or
reinstatement, the employee is entitled demotion of a employee, or other
to receive the equivalent of one month unjustified action prejudicial to the
pay for every year of service. employee. The employer has to prove
that such managerial actions do not
17. Is proof of financial losses constitute constructive dismissal (Blue
necessary to justify retrenchment? Dairy Corp. vs. NLRC, 314 SCRA 401)

Yes. Proof of actual or imminent 21. May an employee be placed on

financial losses that are substantive in floating status?
character must be proven by the
employer to justify retrenchment (Lopez Yes, provided it is permitted under
Sugar Central vs. NLRC, 189 SCRA circumstances for a period of not more
179). than six (6) months. Beyond this period,
floating status becomes constructive
18. Are there other conditions before dismissal which entitles the employee to
an employee may be dismissed on separation pay (Phil. Industrial Security
the ground of redundancy? Agency Corp. vs. Virgilio Dapiton and
NLRC, 320 SCRA 124)
Yes. It must be shown that there is:
22. When an employee resigned
a) Good faith in abolishing redundant voluntarily, is he or she entitled to
position; and separation pay?

b) Fair and reasonable criteria in No. An employee is not entitled to

selecting employees to be dismissed, separation pay when he or she resigns
such as but not limited to less preferred voluntarily, unless it is a company
status (e.g. temporary employee), practice or provided in the CBA
(Hanford Philippines Inc. vs. Shirley
Joseph, 454 SCRA 786, March 31,
2005).

23. Are quitclaims valid?

Yes, provided that these are voluntarily

signed and the consideration is
reasonable and is not against the law or
public policy. (More Maritime Agencies
vs. NLRC, 307 SCRA 189)

Quitclaims entered into by union officers

and some members do not bind those
who did not sign it (Liana’s Supermarket
vs. NLRC, 257 SCRA 186).