91

How to EFFECTIVELY Fire a Problem Employee

Embed Size (px)

Citation preview

Page 1: How to EFFECTIVELY Fire a Problem Employee
Page 2: How to EFFECTIVELY Fire a Problem Employee

The Story of ILDEBRANDO

Page 3: How to EFFECTIVELY Fire a Problem Employee

Substantial Evidence

VERSUS

Affidavits and Testimonies

CCTV Recordings

Page 4: How to EFFECTIVELY Fire a Problem Employee

WATERFRONT CEBU CITY CASINO HOTEL, INC. and MARCO PROTACIO

-versus-

ILDEBRANDO LEDESMA

G.R. No. 197556

March 25, 2015

Supreme Court of the Philippines

Page 5: How to EFFECTIVELY Fire a Problem Employee

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

Page 6: How to EFFECTIVELY Fire a Problem Employee

NATIONAL LABOR RELATIONS COMMISSION

-WINNER-

WATERFRONT et.al.

-AWARDS-

1. Reversal of Labor Arbiter’s Decision

2. Dismissal was Valid

Page 7: How to EFFECTIVELY Fire a Problem Employee

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

Page 8: How to EFFECTIVELY Fire a Problem Employee

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

Page 9: How to EFFECTIVELY Fire a Problem Employee

Hi! I’m PoL Sangalang

+63 917 821 6848

Page 11: How to EFFECTIVELY Fire a Problem Employee

OFFICER OF THE COURTand

MEMBER OF THE BAR

Page 12: How to EFFECTIVELY Fire a Problem Employee

COUNSELORand

ATTORNEY-AT-LAW

Page 13: How to EFFECTIVELY Fire a Problem Employee

OWNER and PARTNER of a LAW FIRM

Page 14: How to EFFECTIVELY Fire a Problem Employee

BROADCASTER

Page 15: How to EFFECTIVELY Fire a Problem Employee

FACILITATOR and TRAINER

Page 16: How to EFFECTIVELY Fire a Problem Employee

FormerSTUDENTLEADER

Page 17: How to EFFECTIVELY Fire a Problem Employee

UNIVERSITY LEGAL COUNSEL

University of the Philippines

Page 18: How to EFFECTIVELY Fire a Problem Employee

EXECUTIVE DIRECTOR

National Labor Relations Commission

Page 19: How to EFFECTIVELY Fire a Problem Employee

CHIEF LEGISLATIVE OFFICER

Senate of the Philippines

Page 20: How to EFFECTIVELY Fire a Problem Employee
Page 21: How to EFFECTIVELY Fire a Problem Employee
Page 22: How to EFFECTIVELY Fire a Problem Employee
Page 23: How to EFFECTIVELY Fire a Problem Employee

Labor Law Made Easyhttps://www.facebook.com/legalcoach

Free consultation!

Free learning!

Free links!

Page 24: How to EFFECTIVELY Fire a Problem Employee
Page 25: How to EFFECTIVELY Fire a Problem Employee

IT’S OK TO INTERUPT ME

IF YOU HAVE QUESTIONS.

This seminar is INTERACTIVE.

And yes, I mean it!

Page 26: How to EFFECTIVELY Fire a Problem Employee

Disclaimer• No lawyer-client relationship.

• Consult your own legal counsel.

• Remember: legal opinions differ.

• Respect the sub judice rule.

• Avoid conflicts of interest.

Page 27: How to EFFECTIVELY Fire a Problem Employee
Page 28: How to EFFECTIVELY Fire a Problem Employee

3 Key Words

• EFFECTIVELY terminate

• PROBLEM employee

• COSTLY illegal dismissal case

Page 29: How to EFFECTIVELY Fire a Problem Employee

3 WAYS to Terminate

• Efficient.

• Legal.

•Effective.

Page 30: How to EFFECTIVELY Fire a Problem Employee

3 PROBLEM Employees• Article 296 Labor Code.

• Causes Analogous.

• You CAN’T fire… (yet).

Page 31: How to EFFECTIVELY Fire a Problem Employee

3 COSTLY Reasons• Monetary Costs.

• Non-Monetary Costs.

• Costly Risks.

Page 32: How to EFFECTIVELY Fire a Problem Employee

3 COSTLY Risks

• Reinstatement.

• Backwages.

• Damages.

Page 33: How to EFFECTIVELY Fire a Problem Employee

3 Hidden Monetary COSTS

• Direct Costs of Litigation.

• Indirect Costs of Litigation.

• Business Losses.

Page 34: How to EFFECTIVELY Fire a Problem Employee

EFFICIENT WAY

Simply use your MANAGEMENT PREROGATIVEto FIRE!

Page 35: How to EFFECTIVELY Fire a Problem Employee

What’s the problem?

Labor Law limits Management

Prerogative to

Terminate.

Page 36: How to EFFECTIVELY Fire a Problem Employee

Limitation No. 1

• The burden of proving that the termination was for a valid or authorized cause shall rest on the EMPLOYER.

• Article 291 paragraph 2, Labor Code• (Formerly Article 277)

Page 37: How to EFFECTIVELY Fire a Problem Employee

Limitation No. 2

• All doubts in the interpretation and implementation of the Labor Code and its implementing rules and regulations shall be resolved in favor of LABOR.

• Article 4, Labor Code

Page 38: How to EFFECTIVELY Fire a Problem Employee

Full Protection Equation

Page 39: How to EFFECTIVELY Fire a Problem Employee

LEGAL WAY

Use your MANAGEMENT PREROGATIVE to fire LEGALLY.

Page 40: How to EFFECTIVELY Fire a Problem Employee

LEGAL WAY

• Substantive Due Process.

• Procedural Due Process.

• Substantial Evidence.

Page 41: How to EFFECTIVELY Fire a Problem Employee

LEGAL WAY

Page 42: How to EFFECTIVELY Fire a Problem Employee

The Story ofBILLY

Page 43: How to EFFECTIVELY Fire a Problem Employee

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

Page 44: How to EFFECTIVELY Fire a Problem Employee

LABOR ARBITER

-WINNER-

BILLY REALDA

-DECISION-

DISMISSAL WAS ILLEGAL!!!

Page 45: How to EFFECTIVELY Fire a Problem Employee

NATIONAL LABOR RELATIONS COMMISSION

-WINNER-

BILLY REALDA

-DECISION-

1. Affirmed Labor Arbiter’s Decision.

2. Dismissal was ILLEGAL.

Page 46: How to EFFECTIVELY Fire a Problem Employee

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.

Page 47: How to EFFECTIVELY Fire a Problem Employee

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.

Page 48: How to EFFECTIVELY Fire a Problem Employee

LEGAL WAY

Page 49: How to EFFECTIVELY Fire a Problem Employee

Substantive Due Process

• Just Cause.

• Reasonableness.

• Good Faith.

Page 50: How to EFFECTIVELY Fire a Problem Employee

3 PROBLEM Employees• Article 296 Labor Code.

• Causes Analogous.

• You CAN’T fire… (yet).

Page 51: How to EFFECTIVELY Fire a Problem Employee

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.

Page 52: How to EFFECTIVELY Fire a Problem Employee

Causes Analogous1. Loss of trust and confidence;

2. Gross negligence resulting in grave consequences;

3. Inefficiency or incompetence without improvement;

Page 53: How to EFFECTIVELY Fire a Problem Employee

Causes Analogous4. Habitual commission of minor offenses;

5. Unfit for continued employment based on the “Totality of Infraction” doctrine.

6. Company Policy;

Page 54: How to EFFECTIVELY Fire a Problem Employee

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.

Page 55: How to EFFECTIVELY Fire a Problem Employee

Problem EmployeesYou CAN’T Fire…(yet)

1. No JUST CAUSE;

2. Dismissal would be UNREASONABLE;

3. Employer in BAD FAITH;

Page 56: How to EFFECTIVELY Fire a Problem Employee

LEGAL WAY

Page 57: How to EFFECTIVELY Fire a Problem Employee

Substantive Due Process

• JUST CAUSE:–based on Article 296*, Labor Code.

–based on “Causes Analogous”.• Jurisprudence• Company Policy

–must overcome: “Security of Tenure.”

Page 58: How to EFFECTIVELY Fire a Problem Employee

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.

Page 59: How to EFFECTIVELY Fire a Problem Employee

Causes Analogous1. Loss of trust and confidence;

2. Gross negligence resulting in grave consequences;

3. Inefficiency or incompetence without improvement;

Page 60: How to EFFECTIVELY Fire a Problem Employee

Causes Analogous4. Habitual commission of minor offenses;

5. Unfit for continued employment based on the “Totality of Infraction” doctrine.

6. Company Policy;

Page 61: How to EFFECTIVELY Fire a Problem Employee

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.

Page 62: How to EFFECTIVELY Fire a Problem Employee

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.

Page 63: How to EFFECTIVELY Fire a Problem Employee

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!

Page 64: How to EFFECTIVELY Fire a Problem Employee

3 COSTLY Riskswhen violating:

Substantive Due Process

• Reinstatement.

• Backwages.

• Damages.

Page 65: How to EFFECTIVELY Fire a Problem Employee

COSTLY Risks:DAMAGES

• Moral Damages

• Exemplary Damages

• 10% Attorney’s Fees

• Legal Interest

Page 66: How to EFFECTIVELY Fire a Problem Employee

COSTLY Risks:REINSTATEMENT

• Actual Reinstatement–Final–Pending Appeal

• Payroll Reinstatement

• Separation Pay (in lieu of)

Page 67: How to EFFECTIVELY Fire a Problem Employee

LEGAL WAY

Page 68: How to EFFECTIVELY Fire a Problem Employee

Procedural Due Process

• Notice to Explain.

• Notice of Hearing.

• Notice of Termination.

Page 69: How to EFFECTIVELY Fire a Problem Employee

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.

Page 70: How to EFFECTIVELY Fire a Problem Employee

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.

Page 71: How to EFFECTIVELY Fire a Problem Employee

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.

Page 72: How to EFFECTIVELY Fire a Problem Employee

COSTLY Riskwhen violating:

Procedural Due Process

• Nominal Damages: PhP30,000

Page 73: How to EFFECTIVELY Fire a Problem Employee

LEGAL WAY

Page 74: How to EFFECTIVELY Fire a Problem Employee

Substantial Evidence

• Proof of substantive due process.

• Proof of procedural due process.

• Proof of good faith.

Page 75: How to EFFECTIVELY Fire a Problem Employee

Substantial Evidence

• PROOF of

SUBSTANTIVE DUE PROCESS:– Employee committed a valid Offense.

• Affidavits and Testimonies.• Admissions.• Supporting Documents.• Object Evidence.

Page 76: How to EFFECTIVELY Fire a Problem Employee

Substantial Evidence

• PROOF of

PROCEDURAL DUE PROCESS:–Notices were written and served.

• Personal service.• Substituted service.

–Hearings were recorded.• Attendance.• Minutes.

Page 77: How to EFFECTIVELY Fire a Problem Employee

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.

Page 78: How to EFFECTIVELY Fire a Problem Employee

LEGAL WAY

Page 79: How to EFFECTIVELY Fire a Problem Employee

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.

Page 80: How to EFFECTIVELY Fire a Problem Employee

EFFECTIVE WAY

Make your employee fire HIMSELF!

Page 81: How to EFFECTIVELY Fire a Problem Employee

EFFECTIVE WAY

Hand-writtenCordialResignationLetter

Page 82: How to EFFECTIVELY Fire a Problem Employee

Constructive Dismissal

Forced Resignation due toEmployer’s BAD FAITH.

Page 83: How to EFFECTIVELY Fire a Problem Employee

EFFECTIVE WAY

I love youbut…YOU’RE FIRED!

Page 84: How to EFFECTIVELY Fire a Problem Employee

How do you say?...“I LOVE YOU but YOU’RE FIRED!”

D.O.C.U.M.E.N.T. © 2013

GOOD FAITH

Page 85: How to EFFECTIVELY Fire a Problem Employee

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.

Page 86: How to EFFECTIVELY Fire a Problem Employee

Best Practices

• Progressive Discipline.

• Performance Agreement.

• Performance Improvement Plan.

Page 87: How to EFFECTIVELY Fire a Problem Employee

Best Practices

• Probationary Employment.

• Performance Appraisal.

• Code of Ethics.

Page 88: How to EFFECTIVELY Fire a Problem Employee

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

Page 89: How to EFFECTIVELY Fire a Problem Employee

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.”

Page 90: How to EFFECTIVELY Fire a Problem Employee

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?

Page 91: How to EFFECTIVELY Fire a Problem Employee

Effective Termination

I love youbut…YOU’RE FIRED!