D. PREVENTIVE SUSPENSION
What is a Preventive Suspension?
Preventive suspension is a disciplinary
measure for the protection of the
company's
property
pending
investigation of any alleged malfeasance
or misfeasance committed by the
employee.
The employer may place the worker
concerned under preventive suspension
if his continued employment poses a
serious and imminent threat to the life or
property of the employer or of his coworkers. Without this kind of threat,
preventive suspension is not proper.
[Artificio v. NLRC, G.R. No. 172988
(2010)]
However, when it is determined that
there is no sufficient basis to justify an
employee's preventive suspension, the
latter is entitled to the payment of
salaries during the time of preventive
suspension.[Gatbonton v. NLRC, G.R.
No. 146779 (2006)]
WHAT IS THE DURATION FOR
PREVENTIVE SUSPENSION?
No preventive suspension shall last
longer than thirty (30) days.
Upon the expiry of such period, the
employer shall thereafter
. (1) reinstate the worker in his former
or in a substantially equivalent
position or
. (2) the employer may extend the
period of suspension provided
that during the period of
extension, he pays the wages.
IS PREVENTIVE SUPENSION A
PENALTY?
NO. Preventive suspension is not a
penalty in itself. It is merely a measure
of precaution so that the employee who
is charged may be separated, for obvious
reasons, from the scene of his alleged
misfeasance while the same is being
investigated.
While preventive suspension may be
imposed on a respondent during the
investigation of the charges against him,
suspension is the penalty which may
only be meted upon him at the
termination of the investigation or the
final disposition of the case. [PAL v.
NLRC, G.R. No. 114307 (1998)
E. RELIEFS
DISMISSAL
FROM
ILLEGAL
WHAT ARE THE RELIEFS UNDER
THE LABOR CODE? (B-O-R)
1. REINSTATEMENT without loss
of seniority rights and other
priviledges;
2. FULL BACKWAGES, inclusive
of allowances; and
3. OTHER BENEFITS or their
monetary equivalent.
WHAT ARE THE OTHER RELIEFS
NOT FOUND IN THE LABOR
CODE? (S-I-R-M-F-L)
1. Separation pay in lieu of
reinstatement
2. Indemnity in the form of nominal
damages in case of termination
due to just or authorized cause
but without affording the
employee
procedural
due
process.
3. Reliefs to an illegally dismissed
employee whose employment is
for fixed period consisting of
payment to him/her of his/her
salaries corresponding to the
unexpired
portion
of
the
employment contract.
4. Moral and exemplary damages
and attorney’s fees.
5. Financial assistances in cases in
cases where the employee’s
dismissal is declared legal but
there are circumstances justifying
the rewards, such as long years
of service, unblemished record of
service, compassionate justice
and other considerations.
6. Legal interest on separation pay,
backwages and other monetary
awards.
F. MONEY CLAIMS ARRISING
EMPLOYEE
–
EMPLOYER
RELATIONSHIP
WHAT ARE THE BASES OF
EMPLOYEES MONEY CLAIM?
1.
2.
3.
4.
5.
Labor Code;
Other Special Laws;
Jurisprudence;
Employment Contracts;
Voluntary Employer Policy or
practice; or
6. Collective
Bargaining
Agreements (CBA’s)
WHO HAS THE BURDEN OF
PROOF?
GR: EMPLOYEE
Unless the employee set out in his
complaint or affidavit the labor
standards he is entitled which he alleged
the employed failed to pay him, IT
BECOMES
THE
EMPLOYER’S
BURDEN TO PROVE THAT HE HAS
PAID THESE MONEY CLAIMS.
RATIONALE: Pertinent files, payrolls,
records and remittances are not in the
possession of worker but in the
CUSTODY
AND
ABSOLUTE
CONTROL OF THE EMPLOYER.
G. RETIREMENT
WHAT ARE THE TWO TYPLES OF
RETIREMENT FIXED BY LAW?
RETIREMENT PLAN. Employees and
employers are free to agree and stipulate
on the retirement age, either in the CBA
or employment contract.
It is only in the absence of such
agreement, that the retirement age shall
be fixed by law, that is in accordance
with:
1. OPTIONAL
RETIREMENT
upon reaching the age of sixty
(60) years
2. COMPULSARY
RETIREMENT upon reaching
the age of sixty-five (65) years
If there is an agreement for an earlier or
older age of retirement, retirement plan
shall be controlling.
WHAT IS THE MINIMUM AGE OF
SERVICE?
5 years in the absence of retirement plan.
VVI. MANAGEMENT
PREROGATIVE
The employer’s right to conduct the
affairs of his business, according to its
own discretion and judgment, is well
recognized. An employer has a free
reign and enjoys wide latitude of
discretion to regulate all aspects of
employment. This is a management
prerogative, where the free will of
management to conduct its own affairs
to achieve its purpose takes form.
[Torreda vs. Toshiba, G.R. No. 165960
(2007)]
So long as a company’s management
prerogatives are exercised in good faith
for the advancement of the employer’s
interest and not for the purpose of
defeating or circumventing the rights of
the employees under special laws or
under valid agreements
A. DISCIPLINE
WHAT ARE THE COMPONENTS?
1. Right to discipline;
2. Right to dismiss;
3. Right to determine who to
punish;
4. Right to promulgate rules and
regulations;
5. Right to impose penalty;
proportionality rule;
6. Right to choose which penalty to
impose; and
7. Right to impose heavier penalty
than what the company rules
provide.
The employer’s right to conduct the
affairs of his business, according to its
own discretion and judgment, includes
the prerogative to instill discipline in its
employees and to impose penalties,
including dismissal, upon erring
employees. However, the Rules and
Regulations and Penalties must be fair
and reasonable.
This management prerogative must not
curtail the basic right of employees to
security of tenure.
B. TRANSFER OF EMPLOYEES
WHAT ARE THE TWO KINDS OF
TRANSFER?
A transfer means a movement;
1. From one position to another of
equivalent rank, level or salary,
without break in the service; or
2. From one office to another
within the same business
establishment.
OTHER
TRANSFER:
FORMS
OF
1. Prerogative to reorganize and
implement a job evaluation
program;
2. Prerogative to promote; and
3. Prerogative to demote
- Disciplinary action; or
- Constructive
dismissal.
PRINCIPLES:
An employee’s right to security of tenure
does not give him such a vested right in
his position as would deprive the
company of its prerogative to change his
assignment or transfer him where he will
be most useful.
The Employer has the right to transfer or
assign Employees from one area of
operation to another, or one office to
another or in pursuit of its legitimate
business interest.
Provided there is no demotion in rank or
diminution of salary, benefits and other
privileges and not motivated by
discrimination or made in bad faith, or
effected as a form of punishment or
demotion without sufficient cause.
[Westin Phil. Plaza Hotel vs. NLRC]
B. PRODUCTIVITY
STANDARD
WHEN IS BONUS DEMANDABLE
AND ENFORCEABLE?
1.
WHAT IS THE CONCEPT?
2.
1. Incentive scheme
- employees
who
surpass
the
productivity quota or
standards are usually
given
additional
benefits;
2. Disciplinary scheme
- employees may be
sanctioned
or
dismissed for failure
to
meet
the
productivity standards
or quota.
The employer has the right to demote
and transfer an employee who has failed
to observe proper diligence in his work
and incurred habitual tardiness and
absences and indolence in his assigned
work. [Petrophil Corporation vs. NLRC,
G.R. No. L-64048 (1986)]
C. BONUS
GR: it is the amount granted and paid ex
gratia to the employees. Its payment
constitutes an act of enlightened
generosity rather than as a demandable
or enforceable obligation.
It is the amount paid or granted to the
employees for his industry and loyalty
which contributed to the success of the
employer’s business.
The grant is a management prerogative
and cannot be forced to the employer.
3.
When it is stipulated in an
employment contract or CBA;
When the grant of bonus is a
company policy or practice;
When it is granted as an
additional compensation which
the employer agreed to give
without any condition such as
success of business or more
efficient or more productive
operation of wage or salary;
hence demandable.
It thus becomes a demandable and
enforceable obligation only when it
is made part of the wage or salary
or compensation.
When considered as part of the
compensation
and,
therefore
demandable and enforceable, the
amount is fixed. But is the amount of
bonus is dependent on the profits,
the bonus is not demandable and
enforceable.
WHEN IS BONUS FORFEITED?
It is valid for an employer to establish as
policy that once an employee is found
guilty of an administrative charge, he
shall forfeit his bonus in favor of the
employer.