company policy: elements of administrative investigation and progressive discipline. july 24, 2014....
TRANSCRIPT
Philippine Spring Water Resources Inc., and Danilo Y. Lua
-versus- Court of Appeals and
Juvenstein B. Mahilum G.R. No. 205278 June 11, 2014
Supreme Court of the Philippines
Disclaimers
• No lawyer-client relationship.
• Consult your own legal counsel.
• Legal opinions differ.
• Respect for the sub judice rule.
• Avoid conflict of interest.
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Employer’s Rights? • Law on Ownership (Civil Code):
“The owner has the right to enjoy and dispose of a thing, without other limitations other than those established by law.” (Art. 428, Civil Code).
• A “thing” can be: – Physical Capital (e.g. land, building, equipment) – Financial Capital (e.g. financing) – Intellectual Capital (e.g. business model) – Human Capital (e.g. organization)
Employer’s Rights? • Law on Contracts (Civil Code):
“The contracting parties may establish such stipulations, clauses, terms and conditions as may be deemed convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” (Art. 1306, Civil Code)
• Employment is a contract.
Employer Power! • Law on Management Prerogative:
“The State recognizes the indispensable role of the private sector, encourages private enterprises, and provides incentives to needed investments.” (Sec. 20, Art. II, Constitution)
“The State…x x x… recognizing the right of enterprises (1) to reasonable returns on investments, and (2) to expansion and growth.” (Sec. 3, Art. XIII, Constitution)
Management Prerogative 1. Right to hire employees of their
(employers’) own choice;
2. Right to fire (and discipline) them;
3. Right to determine their compensation and benefits; and
4. Right to control their employees.
3 Ways to Investigate, Discipline and Terminate Employees
• Efficient but NOT necessarily legal.
• Legal but NOT necessarily effective.
• Effective (which is more than legal).
3 Reasons to Avoid ILLEGAL Dismissal Cases
• Monetary and Business Costs.
• Emotional, Mental, Physical and Spiritual Costs.
• Social and Macro-Economic Costs.
3 Hidden Monetary and Business COSTS
• Direct Costs of Litigation.
• Indirect Costs of Litigation.
• Business Losses and Closure.
3 Kinds of Workers to I.D.T.
• Employees guilty of JUST CAUSE.
• Employees NOT guilty of just cause.
• Workers who are NOT employees.
3 Kinds of Employees who are Guilty of Just Cause
• Guilty under Article 296 Labor Code.
• Guilty under Causes Analogous.
• Guilty under Company Policy.
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.
Causes Analogous 1. Loss of trust; 2. Gross negligence coupled with a grave
consequence; 3. Incompetence without improvement; 4. Habitual commission of minor offenses;
and 5. Unfit for continued employment based on
the “Totality of Infraction” doctrine.
Company Policy • Causes Analogous is the LEGAL BASIS
for employers to create new offenses penalized by termination.
• New offenses must have the same gravity as the offenses in Article 296.
• Must be written, well defined and circulated (e.g. Employee Handbook).
Other Problem Employees 1. Employee isn’t the problem (what then?); 2. Problem employee, yes; but he isn’t
dismissible (yet); 3. Problem employee, yes; but he can be
severed without firing him; 4. Employee who lacks motivation or skills;
and 5. Non-employee worker;
3 Ways to I.D.T.
• Efficient but not necessarily legal.
• Legal but not necessarily effective.
• Effective (which should be legal).
Substantive Due Process
• Just Cause • Reasonableness • Good Faith
Procedural Due
Process
• Notice to Explain • Notice of Hearing • Notice of
Termination
Substantial Evidence
• Proof of Substantive Due Process
• Proof of Procedural Due Process
• Proof of Good Faith
LEGAL WAY
Substantive Due Process • JUST CAUSE:
– based on Article 296*, Labor Code.
– based on “Causes Analogous”.
– must overcome:
“Security of Tenure.”
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.
Causes Analogous 1. Loss of trust; 2. Gross negligence coupled with a grave
consequence; 3. Incompetence without improvement; 4. Habitual commission of minor offenses;
and 5. Unfit for continued employment based on
the “Totality of Infraction” doctrine.
Substantive Due Process • REASONABLENESS:
– Penalty is proportionate to the offense.
– Offense is NOT against Law or Public Policy.
– Offense is business-related or employment-connected.
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!
Procedural Due Process • NOTICE TO EXPLAIN:
– Describes the who, what, when, where, why and the how much or the manner the offense was committed.
– Gives at least 5 DAYS to submit the written explanation.
– Specifies TERMINATION as possible penalty, if found guilty.
Procedural Due Process • NOTICE OF HEARING:
– Gives opportunity to the employee to verbally explain his side and present his evidence.
– States that he has right to counsel or representative of his own choice.
– Lays down the hearing procedure.
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.
Substantial Evidence
• Proof of substantive due process.
• Proof of procedural due process.
• Proof of good faith.
Substantial Evidence • PROOF OF SUBSTANTIVE DUE
PROCESS: – Offense is defined and justified. – Employee committed the offense.
• Affidavits and Testimonial Evidence. • Admissions. • Documentary Evidence. • Object Evidence.
Substantial Evidence • PROOF OF PROCEDURAL DUE
PROCESS: – Notices are written and served.
• Personal service. • Substituted service.
– Hearings are recorded. • Attendance. • Minutes.
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.
Substantive Due Process
• Just Cause • Reasonableness • Good Faith
Procedural Due
Process
• Notice to Explain • Notice of Hearing • Notice of
Termination
Substantial Evidence
• Proof of Substantive Due Process
• Proof of Procedural Due Process
• Proof of Good Faith
LEGAL WAY
CONSTRUCTIVE DISMISSAL
• A form of ILLEGAL TERMINATION; • No formal termination or disciplinary
proceeding was initiated; – No due process; Presumably, no just or
authorized cause as well. • Employee was forced to resign because:
– Demotion or diminution of benefits; or – Impossible or unbearable for the employee to
continue with his employment; or – Directed by the employer to resign.
PREVENTIVE SUSPENSION Ground:
– Serious and imminent threat to the: • Life and/or property of the… • Employer and/or co-workers.
Maximum period: 30 days. Otherwise, it shall be CONSTRUCTIVE DISMISSAL.
Ideally, the Notice of Preventive Suspension is incorporated in the Notice to Explain (or 1st Notice) issued to the employee.
It may be credited to the penalty of suspension, if Employee is found guilty of an offense punishable with suspension.
TEMPORARY TRANSFER Requirements:
– Genuine business need or necessity; – Good faith; – No undue hardship upon employee; and – Not meant as a form of penalty.
Otherwise, the transfer will be considered as a form of CONSTRUCTIVE DISMISSAL.
If there is just cause, transfer may be resorted to as an alternative to preventive suspension; but a disciplinary proceeding must be initiated.
Effective Way • Legal Way isn’t enough. Why? • Because…
– Filing a labor case is so easy and it’s free; – An employee who felt mistreated will try to
vindicate himself or get even; – A guilty employee will try to save face; – Many lawyers, paralegals, and labor
leaders accept contingency fees.
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices: Progressive Discipline N egotiate, negotiate, negotiate!!! T ake advice only from experts.
Documentation X 3
• Pre-Employment Documentation.
• Employment Documentation.
• Pre-Termination & Post Employment Documentation.
Open-Mindedness
• Be tolerant with your employees.
• Be receptive to new ideas and possibilities.
• Be accepting of the outcome.
Clarity
• Clarity in written communication.
• Clarity in oral communication and action.
• Clarity in purpose and objective.
Understand ER/LR • Understand that:
1. ER/LR is a “Game”.
2. the “Rules of the Game”.
3. the “Goals of the Game”.
Rule of Law
Constitution Laws (including Labor Laws)
Rules & Regulations
Jurisprudence Public Policies and Principles
of Equity
Contracts
Company Policies
3 Kinds of Win Scenarios • Win – Lose
• Compromise (or Half-baked Win)
• Win – Win (Mindset) – “Think Win-Win” by Steven Covey
3 Ways To Win • By “Hook” or by “Crook”.
• Out Last. Out Wit. Out Pay! (“Survivor”).
• WIN with INtegrity (“WIN-wIN”). – It’s more than just winning legally.
Why WIN-wIN?
• I can’t compartmentalize my life.
• I can’t justify the means with the end.
• I reaped what I’ve sown.
• I almost lost my soul.
What’s WIN-wIN? “… what king would go to war against
another king without first sitting down with his counselors to discuss whether his army of 10,000 could defeat the 20,000 soldiers marching against him? And if he can’t, he will send a delegation to discuss terms of peace while the enemy is still far away.”
- Jesus Christ (Luke 14:31-32 NLT)
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices: Progressive Discipline N egotiate, negotiate, negotiate!!! T ake advice only from experts.
Embrace Best Practices
• Good Practices.
• Better Practices.
• Best Practices: PROGRESSIVE
DISCIPLINE
Progressive Discipline Mindset 1. Do no harm.
2. Make things better.
3. Respect others.
4. Be fair.
5. Be compassionate.
Negotiate X 3
• Negotiate before a labor dispute.
• Negotiate during a labor dispute.
• Negotiate after a labor dispute.
Take advice only from experts • Licensed or seasoned experts.
• Local labor law experts.
• Practical and trust-worthy experts.
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices: Progressive Discipline N egotiate, negotiate, negotiate!!! T ake advice only from experts.
Progressive Discipline Definition: It is a system of discipline where penalties
increase upon repeat occurrences. Purpose: It primarily aims to correct the negative behavior
rather than to punish the erring employee. Range of Responses: 1. Counseling or coaching. 2. Verbal warning. 3. Written warning. 4. Suspension or demotion or fine or forfeiture. 5. Performance Improvement Plan. 6. Termination.
Progressive Discipline
Advantages: 1. It addresses the silence of the Labor Code
regarding “Incompetence” as a ground for termination.
2. It helps the Employer document habitual negative behaviors, which is essential in establishing “Gross and Habitual Negligence” as a ground for termination.
3. It helps the Employer prove that he was in Good Faith in dealing with the Employee.
Progressive Discipline
Advantages (continuation): 4. It helps build up a case for “Analogous Cause”
as a ground for termination. 5. Since it is corrective in approach, it helps
preserve the existing members of the team while improving their performance and behavior.
6. It saves the Employer costly recruitment and training expenses for new hires, as well as prevents downtime due to vacancies.
7. It promotes Employee morale.
Progressive Discipline Requirements: 1. Employee Manual (with List of Offenses and
Penalties). 2. Step-by-step Implementation Guide. 3. Training for Managers and Supervisors. a. Counseling or Coaching Skills. b. Verbal and Written Warnings. c. Performance Improvement Plan. 4. Employee Interview Log Sheets. 5. 201 File. 6. Templates and Scripts.
Progressive Discipline Process 1. Pre-Investigation Stage.
a. Prepare: Company Policies and Employee Manual. b. Prepare: Employment Contracts and 201 File. c. Progressive Discipline: Train the Managers. d. Progressive Discipline: Counsel or Warn Employees. e. Preliminary: Fact-finding Activities.
2. Investigation Proper. a. Start: Notice to Explain or Show Cause Memo. b. Progressive Discipline: Performance Improvement Plan. c. End: Notice of Decision.
3. Post-Investigation Stage. a. Review: Company Policies and Employee Manual. b. Review: Employment Contracts and 201 File. c. Progressive Discipline: Re-train the Managers.
Pre-Investigation
Coaching/ Counseling
Investigation 1st Notice
PIP
Investigation 2nd Notice
Post-Investigation
HR Best Practices
• Performance Appraisal.
• Performance Improvement Plan.
• Performance-based Rewards.
LR Best Practices
• Walk-in Compromise Settlement.
• SEnA (Single Entry Approach).
• “The Cordial Resignation Letter.”
Ethical Best Practices • Rotary Code of Conduct:
– “Be fair in all dealings with others and treat them with the respect due to them as fellow human being.”
• Human Relations, Civil Code: – “Article 19. 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.”
Spiritual Best Practices
• ‘For the whole law can be summed up in this one command: "Love your neighbor as yourself.”’
• Galatians 5:14, The Bible (New Living Translation)
Progressive Discipline Mindset 1. Do no harm.
2. Make things better.
3. Respect others.
4. Be fair.
5. Be compassionate.