Lawful termination of employee’s services

Dear PAO, 
My supervisor told me and my two co-employees that we will be terminated on or before October this year because our services will no longer be needed since the company is about to purchase machines that will do the exact services that we are rendering. I just want to know if this can be legally done to us. What benefits will we get assuming they really push through with our termination?
Dawn

Dear Dawn,
Not all terminations of employees are considered unlawful or illegal. Our laws have enumerated the just and authorized causes for which an employer may validly terminate the services of an employee and these are specifically mentioned under Articles 282, 283 and 284 of Presidential Decree 442, as amended, or the Labor Code of the Philippines.

In the situation that you have presented, we believe that the applicable legal provision is Article 283 of the code. As provided therein, “The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, x x x” (Emphasis supplied)

Nevertheless, it is necessary that such termination be done by your employer with due process. As stated under Section 2, Paragraph 3, Rule 1, Book VI of the Omnibus Rules Implementing the Labor Code, the requirement of due process is complied with upon the service by the employer of a written notice to the employee as well as the appropriate Regional Office of the Department of Labor and Employment (DOLE) at least thirty (30) days before the effectivity of the termination, specifying therein the ground/s for such termination.

Supposing your employer proceeds with your termination, in compliance with the above-mentioned tenets, you are entitled to receive a separation pay that is equivalent to at least your one (1) month pay or to at least one (1) month pay for every year of your service, whichever is higher. (Article 283, Id.) You may also claim your unpaid salaries, if there are any, as well as your 13th month pay, which shall be in proportion to the length of time you worked for this year, reckoned from the time you started this year up to the time of your termination. You may also demand such other benefits expressly granted under your contract of employment or collective bargaining agreement, should there be any.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

555 contracting vs project employment

A TEMPORARY worker came to me last week to plead for his continued employment as he grappled with the end of his five-month contract. He told me he’s willing to sign a contract promising that he will not file any legal claim for regular employment if his services are retained for two years. What’s the best approach to this? -- Bewildered to Death

It’s flattering and at the same time puzzling to hear from a temp who may not have other options but to be continuously attracted to your organization. For management who were born yesterday, the suggestion is usually tempting, until you realize that it can be a dangerous legal trap.

With the little knowledge that I know about the law, you and the temp cannot simply commit in writing any agreement that would circumvent the Labor Code and its pertinent rules that were created to protect the interests of workers. Even a bar flunker will readily tell you that labor standards and social legislations were established to give protection to those who have less in life.

Here’s what I suspect. Some enterprising labor lawyer may have prodded your temp to test your being naïve or foolish. Every day, some contingent workers may have not much to do that they dream of assuming a regular post in your organization.

On top of that, many of them work so hard that you think they deserve recognition. The trouble is that if you ignore their basic aspirations, they will do whatever is possible, if not do stupid things like offer such an illegal waiver promising not to file a legal complaint against management.

Then you look at your manpower plan, which looks rather empty for another regular job. In fact, you’re now in the midst of outsourcing many of your internal processes to external service providers. But sometimes, this approach is wrong, when you think of its many advantages, including the unwitting leak of trade secrets to another company that could be your potential competitor.

Sooner than you think, you will encounter all kinds of problems and your neck will be a little over the dirty quicksand, prior to the company’s bankruptcy. And at that point, you will wish that you hadn’t said yes to outsourcing.

This is a fast becoming problem among organizations that rely much on temps and outsourcing companies, so that contractual workers outnumber the regular work force by as much as 70%.

And so, what’s the better option? Instead, I’d like to suggest that you offer project employment. It’s much better than giving 555 contracts, which are demeaning to some workers. With project employment, you can define the task, the work standards, and the period of employment, which can last from one to three years.

I’ve been hearing a lot of good things about project employment from many of my well-meaning friends in the human resources profession.

I’m passing this information to you. Just the same, allow me to make this disclaimer: I’m not a lawyer.

That’s why it’s better for you to consult your lawyer. Ask him to compare the advantages of project employment with the hiring of people from a manpower agency, or even from a cooperative. When I say a lawyer, choose someone who has the heart and mind for the poorest of the poor and not just anyone who would give you false expectations and mistaken confidence that they can win the battle in any court of justice.

Remember, it’s you who will pay for the cost of a protracted legal battle. This is not to mention the time and effort that you could spend elsewhere. This is the lesson of a businessman-friend who opted to hire and maintain a former union lawyer, now a reformed person after leading a botched strike in one bank, resulting in job loss for hundreds of union members.

Framed this way, you should also look at the ethical side of running a business. Figure out how to earn reasonable profit with honor. Create the best work environment for all workers and give them decent jobs in the process.

Go ahead and explore a better option for the concerned temp. If he’s good and has the potential to succeed, offer him a regular job in the organization, if not project employment for the two years he’s offering. Agree on a mutually-acceptable work standard, timeline, and target.

Coach him to do his best and not let a manpower agency do the thinking for your business. Hiring temps may be good for some time. 

The goodness is temporary, but the evil things become permanent when management do it without fail.

elbonomics@gmail.com

source:  Businessworld