termination in the phils

8/2/2019 Termination in the Phils

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Termination of Employment in the Philippines

Terminating an employee in the Philippines is taken VERY seriously and can be a complex process,especially after the employee is regularized. The Philippine Constitution says, no involuntaryservitude in any form shall exist except as punishment for a crime whereof the party shall havebeen duly convicted. In view of the prohibition on involuntary servitude, an employee is given theright to resign under art. 285 of the Labor Code.

The provision recognizes two kinds of resignation without cause and with cause. If the resignationis without cause, the employee is required to give a 30-day advance written notice to the employer,to enable the employer to look for a replacement to prevent work disruption. If the employee fails togive a written notice, he or she runs the risk of incurring liability for damages. The same provisionalso indicates the just causes for resignation (with cause)

Serious insult to the honor and person of the employee

Inhuman and unbearable treatment;

Crime committed against the person of the employee or any of the immediate members ofthe employees family; and

Other analogous causes.

In this second type of resignation, the employee need not serve a written notice. Forced resignation

is not allowed and is considered constructive dismissal a dismissal in disguise. Employeeretirement is either voluntary or compulsory under art. 287 of the Labor Code.

Dismissal of an Employee in the PhilippinesAn equality of rights exists between employer and employee. While the employer cannot force theemployee to work against his or her will, neither can the employee compel the employer to continuegiving him or her work if there is a lawful reason not to do so. Thus, the employer may terminate theservices of an employee for just or authorized causes after following the procedure laid down bylaw, but the employer has the burden of proving the lawfulness of the employees dismissal in theproper forum.

Just causes are blameworthy acts on the part of the employee such as serious misconduct, willfuldisobedience, gross and habitual neglect of duties, fraud or willful breach of trust, commission of acrime and other analogous causes (art. 282, Labor Code).

Authorized causes are of two types business reasons and disease. The business reasons areinstallation of labor-saving devices, redundancy, retrenchment and closure or cessation of operation(art. 283, Labor Code). Before the employer can terminate employment on the ground of disease,he must obtain from a competent public health authority a certification that the employees diseaseis of such a nature and at such a stage that it can no longer be cured within a period of six monthseven with medical attention (art. 284, Labor Code; Implementing Rules of Book VI, Labor Code).

Those hired on a temporary basis, that is, for a term or fixed period are not regular employees,but are contractual employees. Consequently, there is no illegal dismissal when their services areterminated by reason of the expiration of their contracts. Lack of notice of termination is of noconsequence, because a contract for employment for a definite period terminates by its own term atthe end of such period.

An Illegal Strike can be cause for Termination of EmploymentEmployment is not deemed terminated when there is a bona fide suspension of the operations of abusiness or undertaking for a period not exceeding six months, or when the employee fulfills amilitary or civic duty (art. 286, Labor Code). Under the Corporation Code (sec. 80), the surviving orconsolidated entity in a merger or consolidation automatically assumes all rights and obligations,assets and liabilities of the combining entities. This includes obligations or liabilities under validagreements, like labour contracts. The surviving or consolidated entity must, therefore, recognizethe security of tenure and length of service of the workers of the merging or consolidating


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corporations. By the fact of merger or consolidation, a succession of employment rights andobligations occurs.

Notice and prior procedural safeguardsAs stated above, dismissals based on just causes contemplate acts or omissions attributable to theemployee while dismissals based on authorized causes involve grounds business or health allowing the employer to terminate.

A termination for an authorized cause requires payment of separation pay. When the termination ofemployment is declared illegal, reinstatement and full backwages are mandated under art. 279 ofthe Labor Code. If reinstatement is no longer possible where the dismissal was unjust, separationpay may be granted.

Procedurally, (1) if the dismissal is based on a just cause under art. 282 of the Labor Code, theemployer must give the employee two written notices and a hearing or opportunity to be heardbefore terminating the employment, that is, a notice specifying the grounds for which dismissal issought and, after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) ifthe dismissal is based on authorized causes under arts. 283 and 284 of the Labor Code, theemployer must give the employee and the Department of Labour and Employment written notices30 days prior to the effectivity of the separation.

Severance pay with TerminationAs already noted, separation pay is required to be paid to the employee when there is terminationof employment by the employer for an authorized cause, the amount of which depends on thecause. If the termination is due to the installation of labour-saving devices or redundancy, theseparation pay is one months pay for every year of service or one month pay, whichever is higher(art. 283, Labor Code). If the termination is due to retrenchment to prevent losses, or closure orcessation of operation of the establishment not due to serious business losses, or due to disease,the separation pay is one-half months pay for every year of service or one month pay, whichever ishigher (arts. 283 and 284, Labor Code). However, there is no requirement for separation pay if theclosure is due to serious business losses.

Avenues for redressFrom the foregoing, four possible situations may be derived: (1) the dismissal is for a just cause

under art. 282 of the Labor Code, or for an authorized cause business reason under art. 283 orhealth reason under art. 284 and due process was observed; (2) the dismissal is without just orauthorized cause but due process was observed; (3) and there no process; (4) for a not observed.

In the first situation, the dismissal is undoubtedly valid and the employer will not incur any liability,save for separation pay when the dismissal is for an authorized cause.

In the second and third situations, where the dismissals are illegal, art. 279 of the Labor Codemandates that the employee is entitled to reinstatement without loss of seniority rights and otherprivileges and full backwages, inclusive of allowances, and other benefits or their monetaryequivalent computed from the time the compensation was not paid up to the time of actualreinstatement.

In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot becured, it should not invalidate the dismissal. However, the employer should be held liable fornominal damages for non-compliance with the procedural requirements of due process. If thedismissal is for an authorized cause, the employee is also entitled to separation pay.

Compulsory arbitration of illegal dismissal cases is conducted by the Labour Arbiters of the NationalLabour Relations Commission and their decisions are appealable to the Commission (arts. 217 and218, Labor Code).


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In view of the stated preference for voluntary modes of settling labour disputes under art. 13 (3) ofthe Constitution and art. 211of the Labor Code, voluntary arbitration of illegal dismissals isrecognized on the basis of mutual agreement between the parties (art. 262, Labor Code).

Compulsory arbitration is both the process of settlement of labour disputes by a government agencywhich has the authority to investigate and issue an award binding on all the parties, as well as amode of arbitration where the parties are compelled to accept the resolution of their dispute

through arbitration by a third party.

While a voluntary arbitrator is not part of the labour department, he or she renders arbitrationservices provided for under labour laws. Generally, the voluntary arbitrator is expected to decideonly questions that are expressly delineated by the submission agreement. However, sincearbitration is the final resort for the adjudication of disputes, the arbitrator can assume that he orshe has the power to make a final settlement.

Thus, assuming that the submission agreement empowers the arbitrator to decide whether anemployee was discharged for just cause, the arbitrator can reasonably assume that his or herpowers extend beyond giving a mere yes-or-no answer and include the authority to reinstate with orwithout back pay.

Difference between a Just and Authorized Cause of Termination

Just cause refers to a wrong doing committed by the employer or employee on the basis of whichthe aggrieved party may terminate the employer-employee relationship. Authorized cause refers toa cause brought about by changing economic or business conditions of the employer.

Causes for Termination by the Employer1. Serious misconduct;2. Willful disobedience of employers lawful orders connected with work;3. Gross and habitual neglect of duty;4. Fraud or breach of trust;5. Commission of a crime or offense against the employer, employers family or representative;

and6. Other analogous causes.

Just Causes for Termination by the Employee1. Serious insult by the employer or his or her representative on the honor and person of theemployee;

2. Inhuman and unbearable treatment accorded the employee by the employer or his or herrepresentative;

3. Commission of a crime by the employer or his or her representative against the person ofthe employee or any of the immediate members of his or her family; and

4. Other analogous causes.

Authorized Causes for Termination1. Installation of labor-saving devices;2. Redundancy;3. Retrenchment to prevent losses;

4. Closure or cessation of business; and5. Disease not curable within six months as certified by competent public authority, andcontinued employment of the employee is prejudicial to his or her health or to the health ofhis or her co-employees.

Due Process in the Context of Termination of EmploymentDue process means the right of an employee to be notified of the reason for his or her dismissaland, in case of just causes, to be provided the opportunity to defend himself or herself.

Components of Due Process in Termination Cases


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dismissed employee may already be employed and earning elsewhere does not extinguish thepenalty.

The former position of the employee no longer exists at the time of reinstatementIn that case, the employee shall be given a substantially equivalent position in the sameestablishment without loss of seniority rights and to backwages from the time compensation waswithheld up to the time of reinstatement.

Employee Benefits when the Establishment no longer existsWhen an establishment no longer exisits at the time an order for reinstatement is made theemployee can claim benefits. The employee is entitled to a separation pay equivalent to at leastone-month pay or at least one month pay for every year of service whichever is higher, a fraction ofat least six months shall be considered as one whole year.

The period of service is deemed to have lasted up to the time of closure of the establishment. He orshe may also claim backwages to cover the period between dismissal from work and the closure ofthe establishment.

Separation PayIn authorized cause terminations, separation pay is the amount given to an employee terminated

due to retrenchment, closure or cessation of business or incurable disease. The employee is entitledto receive the equivalent of one month pay or one-half month pay, whichever is higher, for everyyear service.

In just cause terminations, separation pay is also the amount given to employees who have beendismissed without just cause and could no longer be reinstated.

Reinstatement is not possible so that separation pay shall be given to an illegallydismissed employee

1. When company operations have ceased;2. When the employees position or an equivalent thereof is no longer available;3. When the illegal dismissal case has engendered strained relations between the parties, in

cases of just causes and usually when the position involved requires the trust and confidence

of the employer;4. When a substantial amount of years have lapsed from the filing of the case to its finality.

Exception for an employee dismissed for just cause be entitled to separation payAs a rule, no. But in instances where the just cause for dismissal is other than serious misconduct ormoral turpitude, the employee may be awarded Financial Assistance in the amount of one monthspay as a form of compassionate justice.

Proof of Financial Losses is Necessary to Justify RetrenchmentYes. Proof of actual or imminent financial losses that are substantive in character must be proven tojustify retrenchment.

Proof of Financial losses is NOT necessary to justify redundancy

In redundancy, the existing manpower of the establishment is in excess of what is necessary to runits operation in an economical and efficient manner.

Other Conditions before an Employee may be Dismissed on the Ground of RedundancyIt must be shown that:

Good faith in abolishing redundant position;

There is fair and reasonable criteria in selecting the employees to be dismissed, such as butnot limited to less preferred status (e.g. temporary employee), efficiency and seniority.

A one-month prior notice is given to the employee as prescribed by law.


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Failure to Comply with the Due Process RequirementsFailure to comply with the due process requirements will NOT invalidate a dismissal with anotherwise established just or authorized cause. The employee, however, will be entitled tobackwages from the time of termination till finality of the decision confirming the presence of a justor authorized cause.

Difference between Transfer and Promotion

Promotion is the advancement of an employee from one position to another with an increase induties and responsibilities, and is usually accompanied by an increase in salary. Promotion is aprivilege and as such may be declined by the employee.

Transfer is a lateral movement that does not amount to a promotion. It constitutes a valid exerciseof management prerogative, unless it is done to defeat an employees right to self-organization, toget rid of undesirable workers, or to penalize an employee of his or her union activities. If done ingood faith, managements decision to transfer an employee may not be questioned. An employeesrefusal to transfer may constitute willful disobedience, a just cause for his or her dismissal.

An Employer Transferring an Employee to another place of work without prior noticeGenerally, an employer can not transfer an employee to another place of work without prior notice.But if the urgency of the service requires a transfer, and such transfer is exercised in good faith for

the advancement of the employers interest and will not adversely affect the rights of the employee,the transfer may be undertaken even without the employees consent.

Non-union member availing of the grievance machinery in case of terminationIf a non-union member belonging to an appropriate bargaining unit of the recognized bargainingagent and pays agency fees to the union and accepts the benefits under the collective agreement,said non-union members may avail of the grievance machinery. On the other hand, if the non-unionmember is not part of the appropriate bargaining unit of the recognized bargaining agent and isexpressly excluded in the collective agreements, said employee cannot avail of the grievancemachinery.

Reasonable period for an Employee subjected to Dismissal to answer charges againsthim or her by the Employer

A reasonable period should be provided wherein the employee can answer all the charges againsthim or her, gather evidence and confront the witnesses against him or her. It should include theopportunity to secure the assistance of a representative who could be a union officer.Reasonableness of the period should be based, among others, on the gravity of the charges againstthe employee.

An employee charged with an offense may be placed under preventive suspension whilehe or she is preparing to answer charges filed against him or her by the employerOnly on grounds that his or her continued presence inside the company premises poses a seriousimminent threat to the life or property of the employer or his or her co-workers, and only for aperiod of 30 days may be placed under preventive suspension. After 30 days, the employee shouldbe reinstated to his or her former position or in a substantially equivalent position.

The employer, however, may extend the period of suspension provided that the employee is paid

his or her wages and other benefits during the extension. If the employer decides to dismiss theemployee after completion of the investigation, the employee is not bound to reimburse the amountpaid to him or her during the extended period. The employer is required to immediately notify theemployee in writing of a decision to dismiss him or her stating clearly the reasons for the dismissal.Preventive suspension is not a disciplinary measure, and should be distinguished from suspensionimposed as a penalty.

Validity of the Employers Decision on Termination


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A dismissed employee may still question the validity or legality of his or her dismissal by filing acomplaint for illegal or unjust dismissal before the Arbitration Branch of NLRC. In such a case, theburden of proving that the dismissal is for a valid or authorized cause rests on the employer.

During the pendency of the termination case, an employee may be be retained in his orher workAn employee may be retained in his or her work even during the pendency of a termination case

under the following circumstances:1. Upon serving the preventive suspension period of 30 days; and2. Upon management prerogative allowing the employee to be retained at work and his or her

continued employment poses no serious nor imminent threat to the life or property of theemployer or his or her co-employees.

The Effects of Termination may be Suspended Pending Resolution of the CaseThe Secretary of Labor of the Philippines may provisionally order a reinstatement in the event ofprima facie finding that the dismissal may cause a serious labor dispute as in a strike or lock-out, oris in implementation of mass lay-off.

Services of an Employee Terminated due to DiseaseThe employer may terminate employment on ground of disease only upon the issuance of a

certification by a competent public health authority that the disease is of such nature or at suchstage that it cannot be cured within a period of six months even with proper medical treatment.

Suspending Operations of a BusinessIf the period of suspension of operations do not exceed six months, the workers shall be reinstatedto their respective positions without loss of seniority rights if they indicated their desire to resumework not later than one month from the resumption of operations of business.If the shutdown is for a period of not more than six months such as may occur in equipment checkor repair, stock inventory or lack of raw materials, the employee is only temporarily laid off and,therefore, employer-employee relationship is not severed. If it will last for a period of more than sixmonths and is of an indefinite character, it may be considered as equivalent to closure of theestablishment leading to termination of employment. In such a case, the requirements of the lawand rules on employee dismissals must be observed.

Knowing laws on labor and employment is vital to ones business because a minor violationcould lead you to big trouble. Most employers, especially those who do not have legalcounsel, violate these laws usually not because they intend to, but because of sheerignorance. Unfortunately, ignorance of the law does not excuse them from complying with it.Companies have closed shop after their employees slapped them with labor suits whichended up with these companies paying huge amounts of money representing unpaid wagesor benefits and damages. To avoid being in the same situation, the following are relevantlaws which you should always bear in mind as you go about you.

1. The termination of a staff may fall into one of the categories mentioned below

- Resignation on their own

- Resignation by force


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- Retirement on due dates

2. Resignation should be only in writing from the staff with the approval of the department head

3. The resignation should be processed and forwarded to the MD for final approval

4. The HR Department should conduct exit Interviews and grievances / suggestions should be

documented

5. A Hand over report has to be obtained from the employee detailing the duties and

responsibilities of the post and complete status of work at the time of his leaving

6. The services of employees on the ground of misconduct can be terminated only after an

enquiry is conducted

7. On acceptance of resignation the following have to be done

- The acceptance of resignation or the termination letter has to be sent to the resigning or retiring

person respectively

- All the authorities and responsibilities defined have to be removed or delegated

- Passwords if any have to be inactivated with immediate effect to prevent any unauthorized

activities

- Any cards (swipe card, identity cards) given to him/her have to be returned back and to be

deactivated with immediate effect

- A No Due Certificate should be prepared and should be authorized by the HR Officer,

Accounts, and Administration certifying that there are no dues from the staff to the organization.

- The list of the entire amount due to the staff and the recoveries to be made from them has to

be prepared

- HR officer should maintain a checklist for preparing & verifying the final settlement for the staff

- After exercising the procedures mentioned in the checklist, the final settlement should be

prepared and with MD approval should be forwarded to accounts for disbursement


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- The staff file should be closed and removed from live employees file

- Relieving letter should be prepared and issued to the staff

- Relieving letter and Experience Certificate has to be signed by MD and has to be issued

- All certificates received from the employee have to be returned back and the signature of the

employee should be obtained acknowledging the receipt of certificates by him

6. DICIPLINARY CODE

6.1 Introduction

a) This document is an expression of SBCGTs policy on discipline and a guide toall company employees.

b) Discipline is a system designed to promote orderly conduct.

c) Formal disciplinary action should be the final course of action in rectifyingemployee behaviour.

d) Disciplinary action should be supported through investigation, reasonableevidence of guilt and careful consideration of the circumstances of each casebefore formal action is taken.

e) Disciplinary action should always be prompt, fair and firm.

f) While every attempt has been made to ensure that this Disciplinary Code isapplicable to general disciplinary instances in SBCGT, the requirement for useof discretion within the framework of and in accordance with the spirit of thecode may be required.

g) A successful disciplinary system and climate is dependant on the goodjudgement, understanding and consistent treatment of the parties involved indisciplinary action.


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6.2 Procedure and Documentation

6.2.1 Action of supervisor when an alleged offence has been committed or is reported

to have been committed

When an offence is alleged to have been committed, the Supervisor concerned will

investigate or have the matter investigated, and take any form of the following actions:

a) Dismiss the case;b) Counsel the employee;c) Give a verbal warning;

d) Give a recorded warning;e) Initiate a formal disciplinary enquiry;

6.2.2 Informal disciplinary action

It is desirable for sound interpersonal relations within SBCGT that Supervisor where possible

resolves disciplinary matters by means of informal disciplinary action. Informal disciplinary

action can take the form of either a verbal warning or counselling.

An employee found to have committed an offence of a minor nature should be counselled by

the Supervisor, without an entry being made on the employees personal record. The

Supervisor may however, make a record of the counselling session to allow for an

assessment of the employees performance record, should this be necessary at the time, and

with the employees knowledge and understanding thereof, formulate a plan of corrective

action.

During the counselling, the Supervisor should ensure that the employee is made aware of the

nature of the offence and the standard of the conduct or performance that will be expected in

the future.

6.2.3 Procedure for formal complaints


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a) A supervisor handling a formal complaint must investigate the case with theassistance of the Human Resources Officer, where possible, and ensure thatthe relevant sections of the complaint form (Appendix 7) are correctlycompleted within 48 hours of the offence having been committed or the

supervisor having been made aware of the fact that an offence has beencommitted.

b) A copy of the complaint form should be passed without delay to the HumanResources Officer who will advise whether:

c) The accused should be suspended pending full investigation (if this has notalready been done);

d) Advise the supervisor on whether to continue with a formal complaint

e) The Complainant and the accused must provide names of all persons whoshould be regarded as witnesses as their statements will assist in ensuring afair hearing of a case. Where possible, should there be witnesses who are non-employees, formal statements should be recorded from them as they may beinvited to attend the disciplinary hearing.

6.2.4 Disciplinary Inquiries

The Human Resources Officer will be responsible for the overall application of the code and

should where possible:

a) Advise and guide all participant on the Disciplinary Code;

b) Ensure that the code is applied fairly and consistently in all cases (procedurallyand substantively);

c) When all documentation pertinent to the matter has been collected, the HumanResources Officer shall serve the papers on the accused and/or his/herrepresentative to allow the employee to fully prepare himself prior to thehearing;


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Duties and Responsibilities of the Hearing Chairperson

The Hearing Chairperson shall be any employee on the same level as the direct supervisor ofthe Complainant, but not the direct supervisor.

The Hearing Chairperson should not have been privileged to any information pertaining to the

inquiry prior to the inquiry.

Ideally the Chairperson of a disciplinary inquiry will be required to follow the guidelines below

when performing duties of a presiding official:

a) Introduce and identify all present, stipulate the purpose and format ofproceedings;

b) Ensure that the alleged offender has been given sufficient notification of theinquiry, and that he/she has signed and acknowledged acceptance thereof.Ensure that the alleged offender has understood his/her employee rights in thisregard;

c) Establish if witnesses are present and if so inform the hearing that they will beexcluded from proceedings once they have led evidence and have been crossquestioned;


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d) Should it be established that the accused was not informed of his right torepresentation or that the witnesses are not present, the Hearing Chairpersonwill adjourn and reschedule the hearing for a later date;

e) Should the accused fail to attend the hearing, the Hearing Chairperson will

establish whether the accused was notified of the date, time and venue of thehearing. It will be advisable to re-notify all parties to attend the disciplinaryhearing at a later date if notification was not given;

f) If the accused fails to attend a disciplinary hearing, the Hearing Chairpersonshould in writing advise the accused of the date, time and venue of the hearingand advise him that should he fail to attend, the hearing will proceed in hisabsence;

g) Should the accused fail yet again to attend and if no prior notification for hisabsence was given, he may be deemed to have waived his right to attend thehearing. The Hearing Chairperson will then decide the case in absentia on thefacts available and the accused will be informed, in writing, of the outcome;

h) Having ascertained that the particulars on the complaint form are correct, theChairperson will inform the accused of the charge(s) against him/her, ascertainhis/her understanding thereof and the accused will be asked to plead on thecharges;

i) The accused should be permitted to make any further pertinent commentsshould he/she wish to do so (whether or not he/she has already made a writtenstatement);

j) According to the plea entered by the accused, the Hearing Chairperson mustverify all facts and allegations by questioning the accused, Complainant andany other parties in order to arrive at a decision. Only information provided inthe case documentation pertaining the charge in question and statements

raised during the inquiry will be used as facts pertaining to the disciplinaryinquiry;

k) The Hearing Chairperson will allow the accused, with his/her representative, theopportunity to express opinions on the case;


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l) All witnesses should be called to give evidence and to have such evidenceexamined by the hearing Chairperson, the Complainant and the accused and/orthe accusers representative;

m) If during the course of the hearing, the Hearing Chairperson finds it necessary

to obtain further information, the case should be adjourned to allow for furtherinvestigation;

n) If the accused wishes further evidence to be submitted, this should be allowed,provided that the Hearing Chairperson is of the opinion that such furtherevidence could be of relevance;

o) Once the Hearing Chairperson is of the opinion that he/she has gatheredsufficient evidence surrounding the case, he/she should request any witness

(as) to leave the room;

p) At this stage the Hearing Chairperson may call for a recess during which he/shemay liase with the Human Resources Officer in order to obtain further adviceand information;

q) The Hearing Chairperson may call a recess at any stage of the proceedingsand may consider any call for a recess by any other party of the inquiry;

r) Once the Hearing Chairperson is satisfied that he/she is in a position to make adecision on the guilt or innocence of the accused, he/she will reconvene theinquiry and inform the accused and his/her representative of his/her findings.The Complainant and Human Resources Official (where possible) should bepresent when the decision of guilt or innocence is informed.

s) If it is the opinion of the Hearing Chairperson that the accused is not guilty, hewill inform him accordingly and the finding case dismissed will be entered onthe Complainant form and the employees disciplinary record will be cleared ofany reference to the case;

t) Where an employee is found guilty, the Hearing Chairperson will then take noteof the offenders record of service, disciplinary record, mitigating andaggravating circumstances, seriousness of the offence, consistency ofapplication and any other circumstances he/she may deem necessary toconsider;


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u) In all cases, current un-expired disciplinary warnings will be taken into accountwhen deciding on the appropriate action;

v) Depending on the nature and seriousness of the offence, the whole of theemployees disciplinary record may be considered;

w) The Hearing Chairperson will then record the penalty on the complaint formand inform the offender of the penalty awarded in terms ofSection6.5 and thereasons for arriving at the decision. The Hearing Chairperson will inform theoffender of the period for which the warning will remain on his/her record as avalid entry. The Hearing Chairperson will also inform the offender of his/herright to appeal in terms of Section 6.6 of this code;

x) With regard to corrective action, the Hearing Chairperson will, in liaison with the

immediate Supervisor, the employee and/or representative, and the HumanResources Officer; formulate an action plan to address the required change inbehaviour. The employee will be required to assist in this process and makeproposals in this regard. The aim is to ensure that the process of correctingunacceptable behaviour is addressed objectively and amicably;

y) Request the employee to acknowledge the disciplinary action proposed.Should the employee opt not to sign, a witness should be requested toacknowledge that the details of the inquiry have been communicated to theaccused.

Recording of Proceedings

a) It is in the interest of SBCGT and the individual that all proven offences andsubsequent disciplinary action be accurately recorded.

b) The Chairperson will ensure that all other required administrative details on thecomplaint form are completed before forwarding the document to the Human

Resources Officer for overall review and control.

c) Statements, Complainant forms and other disciplinary records will be retainedby the Human Resources Officer as these may be required even after anemployee has left SBCGTs services.


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d) The Human Resources Officer will be responsible for the input of disciplinarypenalties on employees personal files.

6.3 Special Cases

Suspension

a) An employee may be suspended from work immediately if he/she has allegedlycommitted or is allegedly involved in any one of the following offences:

Assault/attempted assault

Desertion

Sleeping on duty

Negligent loss, driving, damage or misuse of company property

Abuse of electronic/data facilities

Sexual Harassment

Fighting

Riotous Behaviour

Alcohol and drug offences

Wilful loss, damage or misuse of company property

Theft/Unauthorised possession of company property

Breach of Trust

Offences related to dishonesty Offences related to Industrial Action

Any act or omission which intentionally endangers the health or safety ofothers, or is likely to cause damage to Company property

Interference with disciplinary and/or grievance investigations

Abusive or provocative language (when it is likely to cause adisturbance)

Insubordination (if the situation shows signs of getting out of control)

Persistent refusal to obey instructions.

In certain instances the Supervisor will recommend that the offender be

removed from the work place pending investigation of the case. He/shewill take immediate steps to report the matter to his/her immediateSupervisor, who will raise the matter with the CEO. Irrespective of theoutcome, the employee will be paid for days he/she was suspended;

It is mandatory to liase with the Human Resources Officer prior tosuspending an employee in order to endure that the suspension isprocedurally and substantively fair.


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Poor Work Performance

Cases involving substandard or deteriorating work performance are to treat differently fromthose regarded as transgressions of misconduct.

The following guidelines should be considered when dealing with such cases. An attempt

should be made to resolve alleged poor work performance by means of counselling the

individual involved. Where poor the supervisor identifies work performance, the following

procedural action should be considered:

a) Investigate and identify the problem area(s)

b) Communicate this to the individual concerned, and jointly agree on theappropriate plan of action in order to resolve the matter. If deemed necessaryand relevant, norms should be established by arranging appropriate task listsand the time duration allowed for the completion of each task;

c) Consideration should be given to the appointment of a coach or mentor toassist the employee to improve performance;

d) Accurately minute the agreed contents of any agreement put in place andprovide the Human Resources Officer with a copy for record keeping purposes;

e) Regular evaluation and follow up on the agreed plan of action should be made;

f) Should counseling fail to produce the desired improvement, alternative actionshould be considered in liaison with the Human Resources Officer. Alternative

action could include, but is not limited to, termination of the employmentcontract on the grounds of incapacity, demotion or a transfer to an alternativeposition. The employee, throughout this process, will be entitled torepresentation.

6.3 Offences outside normal working hours


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SBCGT reserves the right to take any action it may deem appropriate against employees who

are, in the opinion of SBCGT, guilty of gross misconduct not merely in their working

situations. This is particularly so where the nature of the misconduct may affect the

employment relationship with any other party. Actions that directly relate to the nature of the

business are also liable for disciplinary action.

Court Actions

Where an employee has been criminally charged or legal action has been instituted for an

employment related breach, SBCGT reserves the right to take disciplinary action against

the employee for the alleged offence, in terms of this Code.

6.4 Classification of Offences:

Offences are classified into five major categories.

6.4.1Absenteeism

6.4.2Offences related to Control at Work

6.4.3Offences relating to indiscipline or disorderly behavior

6.4.4Offences related to dishonesty

6.4.5Industrial Action

6.4.1 Absenteesim

Absenteeism in the disciplinary context means being absent from work for an entire working

shift, or part thereof, without the expressed permission from a direct supervisor.


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A sanction of dismissal can apply for the first offence of being absent without permission

provided that the employee was absent for three continuous working days without a valid

reason.

a) Absent without leave;b) Desertion: Leave the work place without intending ever to return; leave without

help or support; abandon; leave without authority or permission.

6.4.2 Offences related to Control at Work

a) Poor Time Keeping and related offences

a) Reporting late for workb) Leaving work earlyc) Extended or unauthorised breaks during working hoursd) Persistently committing all or any of the above.

b) Sleeping on duty

Any employee who is found asleep on duty, whether or not such an action constitutes ahazard to the safety and health of the offender or others or leads to damage to Company

property, shall be deemed guilty of an offence.

c) Negligent Loss, Driving, Damage or Misuse of Company property

a) Negligent loss of Company property: any act whereby an employee, through

carelessness or negligence, loses Company property or is unable to account forit satisfactorily.

b) Negligent driving; driving a company owned or rented vehicle without due care,whether such an act results in an accident or not.


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c) Negligent damage to Company property: any act whereby an employee throughcarelessness or negligence causes or allows Company property to becomedamaged.

d) Misuse of Company property: using Company property for a purpose other than

that for which it was intended.

d) Unsatisfactory Work Performance

a) Carelessness: Performance of a task or duty without the exercise of due carean attention.

b) Negligence: failure to exercise proper care and regard to the manner ofdischarging duty to the extent that tasks have to be repeated or equipment orpersons are at risk of damage or injury.

c) Inefficiency: failure to carry out work at the required standard or failure tocomplete tasks within the given reasonable time limits, without reasonablecause. This includes poor supervision.

d) Loafing: passing time idly or failing without reasonable cause to complete tasksset.

6.4.3 Offences Related to Indiscipline or disorderly behavior.

a) Disobedience and related offences

a) Refusing to obey an instruction: deliberate refusal to carry out a lawful and/orreasonable instruction given by a person in authority and within the area of his

jurisdiction.

b) Failing to obey an instruction: failure to obey a lawful instruction given by aperson in authority and within the framework of his/her jurisdiction.


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c) None-compliance with established procedure / standing instructions: failure tofollow establish procedures.

d) Abuse of electronic / Data facilities: excessive use / abuse of e-mail andcommunication facilities; storage and/or transmission of material of

discriminatory nature; storage and/or transmission of pornographic material;unauthorised monitoring and interception of electronic documentation.

6.4.3.1 Abuse and related offences

a) Abusive Language:

The uttering of any words or the publication of any writing expressing or showing hatred,

ridicule or contempt for any person or group of persons.

The offence I more serious when it is wholly or mainly because of his/her/their nationality,

race, colour, ethnic origin, sex, marital status, religion, creed, political opinion, social or

economic status, degree of physical or mental ability, sexual orientation or culture.

b) Insubordination:

Insolence towards a superior shown by action or words.

6.4.3.2 Disorderly behaviour and related offences

Disorderly behaviour:

Indulging in rough or unruly behaviour or practical jokes whether or not such behaviour

endangers the safety or health of others or the smooth running of the work place.


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Threatening violence:

Threatening to do physical injury to any other person.

Fighting:

Physical contact between two or more persons, engaging in or inciting a group of persons to

indulge in disorderly behaviour or wilfully to damage Company property.

Riotous behaviour:

Unruly behaviour between two or more persons, engaging in or inciting a group of persons to

indulge in disorderly behaviour or wilfully to damage Company property.

e) Sexual Harassment:

Any unwanted or unwelcome sexual advances, requests for sexual favours and other verbal

or physical conduct of a sexual nature when submission to or rejection of this conduct

explicitly or implicitly affects an individuals employment, causes unreasonable interference

with an individuals work performance or creates an intimidating, hostile or offensive work

environment.

f) Discrimination:

Any act whereby an employee discriminates against any other employee or group of

employees on the grounds of nationality, race, colour, ethnic origin, sex, marital status,

religion, creed, political opinion, social or economic status, degree of physical or mental

ability, sexual orientation or culture.


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Willful loss, damage or misuse of Company property

Willful loss: any act whereby an employee willfully or deliberately loses or causes Company

property to be lost.

Willful damage: any act whereby an employee willfully or deliberately damages, or allows or

causes damage to Company property.

Willful misuse: any act whereby an employee willfully or deliberately misuses Company

property.

6.4.5 Offences Related to Dishonesty

Disciplinary cases involving the following offences must be reported to the Human Resources

Officer.

Bribery or Corruption

Giving or receiving or attempting to give or receive any bribe or inducing or attempting to

induce any person to perform any corrupt act.

False Evidence

Deliberately giving untrue, erroneous or misleading information or testimony whether

verbally or in writing.

Forgery and uttering


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Falsifying or changing any documentation with fraudulent intent or attempting to do so.

Uttering or attempting to utter fraudulent or false statements or documents.

Misappropriation

Applying or attempting to apply to a wrong use or for any unauthorised purpose, any funds,

assets or property belonging to SBCGT.

Theft of or unauthorised possession of Company property

Stealing or attempting to deprive SBCGT permanently of its rightful ownership.

Being in possession or disposing of Company property without due authorisation.

Fraud

The unlawful making of a misrepresentation with intent to defraud, which causes actual or

potential prejudice to another party.

Breach of Trust

Actions or conduct of an employee that cause a reasonable suspicion of dishonesty or

mistrust and for which there exist extraneous evidence to prove a breakdown in the

relationship of trust between the concerned employee and SBCGT. This will include a

situation where the conduct of the employee has created mistrust, which is counterproductive


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to SBCGTs commercial activities or to the public interest, thereby making the continued

employment relationship an intolerable one.

6.4.5 Industrial Action

Intimidation

Any act by an employee, whether by himself or in concert with other persons (whether or not

such other persons are employees of SBCGT), to intimidate any employee with the object of

compelling him to take part in any strike or other action which interferes with the normal

operations of SBCGT. Intimidation is an offence even if all the procedures for the settlement

of the industrial disputes and grievances and the Law have been exhausted.

Sabotage

Any deliberate action by an employee that results in the interference with the normal

operations of SBCGT by damaging any machinery, or equipment or by interrupting any

supplies of power, or services necessary to the operations.

Illegal Strike/Lockouts

Participation in any illegal strike action, lockouts, boycott or any other form of work disruption

not in accordance with the applicable statute that constitutions a blatant refusal to work.

Examples of such action include, inter alia, work-to-rule: overtime ban; go-slow.

Any disciplinary matter referred to in this subsection will not preclude SBCGT from exercising

its common law rights to terminate the employment contract in the case of illegal industrial

action.

6.5 Penalties


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Classification of Penalties:

6.5.1 Verbal Warning6.5.2 Recorded Warning

6.5.3 Severe Warning6.5.4 Final Warning6.5.5 Dismissal6.5.6 Demotion6.5.7 Transfer6.5.8 Alternative Penalty to Dismissal

6.5.1 Verbal Warning

Any supervisor may, at any time and at his discretion, reprimand an employee withoutcompleting a complaint form, in which case there will be no entry made on the

employees disciplinary record. When a verbal warning if given, the supervisor must

ensure that the employee being reprimanded is made aware of the existence and

function of the Disciplinary Code. A verbal warning is usually issued where the

offence is of a minor nature.

6.5.2 Recorded Warning

Application: This may be given for a repetition of an offence for which an unrecorded

warning has been given, or it may be given for a first offence.

Validity Period: The employee must be informed that the warning will remain in force

for a period ofsix months.

6.5.3 Severe Warning

Application: Given for a repetition of the same offence or similar offence during a

period when a recorded warning is still in effect, or for a first offence of a more serious

nature.

Validity Period: The employee must be informed that the warning will remain in force

for a period ofnine months.


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6.5.4 Final Warning

Application: Given for a repetition of the same offence or a similar offence during aperiod when a severe warning is still in effect or depending on the nature thereof, for a

first offence of a serious nature. In the case of an employee being found guilty of an

offence of a dissimilar nature within the prescribed period, the hearing official may, at

his discretion, issue a comprehensive final warning on the understanding that if any

offence is committed within the next 12 months, it will render him liable for dismissal.

Validity Period: A final warning is effective for a period of twelve months. The

employee is advised in writing by the official hearing the case of the period applicable

and reminded that a repetition of the offence or the committing of any similar serous

offence within the prescribed period will render him liable for dismissal. A copy of thenotice shall be forwarded to the Human Resources Department.

6.5.5 Dismissal

Application: Dismissal is the final sanction and should be used:

when other forms of disciplinary action have failed;

when an employee on a final warning commits a serous offence;

when the offence committed is of such a serious nature that it amounts to aserous breach or repudiation of the employees contractual obligations;

in cases relating to dishonesty e.g. theft, fraud or corruption;

in the case of any employee who is absent from work without permission fora period of three continuous working days or more. In this case theemployee will be dismissed in absentia after the third day if no reason forsuch absence is receive. Should the employee return to work after he hasalready been dismissed, he may request that the case be re-opened?

Once an employee has been dismissed in accordance with the procedure contained in

this Code, under no circumstances will he be considered for re-employment should he

re-apply at a later stage. If it is discovered that a dismissed employee has obtained

re-employment with SBCGT either inadvertently or through deception, his services will

be terminated immediately.


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6.5.6 Demotion

Demotion is not an acceptable corrective action and is therefore, not used as a

punishment for a specific offence. It is used only where the employee is unable to

meet the requirements of his present job but is suitable for continued employment in a

lower capacity.

6.5.7 Transfer

Transfer is not permitted as a tool for disciplining employees. A transfer shall only be

effective in terms of SBCGTs Conditions of Employment and Service. Transfer, as

the result of the outcome of a disciplinary action, will be considered in special

circumstances.

6.5.8 Alternative Penalty to Dismissal

A comprehensive final warning may be considered at the discretion of the Hearing

Chairperson as an alternative penalty to dismissal in instances where an employee is

found guilty of an offence of a dissimilar nature to a valid final warning on his personal

record.

The sanctioning of a comprehensive final warning will only be considered in

circumstances warranting corrective action and liaison between the Hearing

Chairperson and the Human Resources Officer is encouraged before such a penalty isimposed.

A comprehensive final warning will be valid for twelve months from the date of the

imposed penalty.


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The Role of the HR Officer

The maintenance of workplace discipline is strictly a function of line management. Human

Resources Officer should be available to assist line management where required. As far as

possible, the Human Resources Officer should, in consultation with the official chairing

hearing, ensure that disciplinary action taken is procedurally and substantively fair.

The Human Resources Officer should be available to advise and assist all employees on all

disciplinary matters.

The Human Resources Officer must not impose penalties, nor hear appeals in respect of own

subordinates or immediate Supervisors.

The Human Resources Officer is responsible for:

Ensuring that the complaint form properly identifies the offence and is otherwisecorrectly completed

Ensuring that the alleged offender is aware of the charges against him/her

Interviewing and taking statements from the Complainant, accused and anywitness

Investigating the domestic circumstances of the alleged offender, when necessary

Ensuring that all facts are collated marshalled and presented without bias.

Advising the Complainant, accused, witness (as) and representative of their rolesand rights

Ensuring that documentation pertaining to the hearing is forwarded to theappropriate officials

Advising the accused and his representatives of progress made for cases that arepending or in recess.

The Human Resources Officer may at his/her discretion recommend that a concluded

disciplinary case be reopened in instances where gross non-compliance to the Disciplinary

Code is evident.

The Role of the Representative


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Any employee, against whom formal disciplinary proceedings are held may at his request, be

accompanied at the initial and any subsequent hearing by a colleague from the same working

section, or in the case of an employee who is represented by a properly constituted

consultative committee, by a member of such a committee. An employee who is a Union

member may be represented by the appropriate Part-time or Full-time Shop Steward, in

accordance with the provisions of the Recognition and Procedural Agreement betweenSBCGT and Union. Legal representation or representation by non-Company persons during

internal Company enquiries is not permitted.

The representative has no right to insist on the employee being accompanied if he does not

wish it; that is, a representative will attend a disciplinary hearing only at the request of the

employee. He will be invited to comment on the evidence.

The representative may ask question and cross-question during the disciplinary hearing, but

may not give evidence during such hearings.

The representative may make submissions to the hearing official on the guilt or otherwise of

the accused prior to the hearing official making his finding. He may also make submissions

to the hearing officials on the mitigating factors to be considered and on the penalty to be

imposed.

Should the representatives comments at the hearing be of such a nature as to warrant re-

consideration of certain matters or further investigations, time should be allowed for this and,

if necessary, the enquiry recessed.

6.5.9 Dismissal Procedure

a) A direct Department Manager may recommend that an employee be dismissed.

b) For the purpose of the dismissal procedure, a direct Department Manager isdefined as an employee graded D-lower or above who has a supervisory link tothe employee concerned.


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c) Following a disciplinary hearing outcome being advised to the employee whoresults in the recommendation for a dismissal and the employee accepts therecommendation; the Hearing Official will refer the case documentation forreview to the relevant Manager for the department concerned.

d) The relevant Manager will endeavor to review the case within forty-eighthours/two working days and endorse or reject the recommendation.

e) If the recommendation for dismissal is endorsed, the hearing official shall referthe recommendation to the Human Resources Officer who will review the casewith the relevant Head of Department.

f) If the recommendation for dismissal is rejected, the case shall be referred to theHuman Resources Officer and the original hearing official.

g) The relevant Manager may sanction the recommendation in writing, therebyeffecting dismissal, or reject it. If the recommendation is rejected, action 8.6above shall be applied.

h) The employee shall be notified of the decision verbally by the Hearing Official.If the employee is dismissed, the employee will be notified in writing. Thisnotification shall be signed by the relevant Executive Committee Member.

i) Every employee has the right to appeal against a decision to dismiss him/her.The appeal procedure will apply as outlined in Section 9.

6.6 Disciplinary Appeal Procedure

6.6.1 Every employee has the right of appeal against any decision which involves any entry

on his/her disciplinary record and which may thus affect his future employment

prospects.

6.6.2 Any employee who wished to appeal against the outcome of any disciplinary hearingagainst him/he must notify the Human Resources Officer in writing within two days ofbeing notified of the outcome of the disciplinary hearing. The right of appeal must bebased on one or more of the following appeal grounds.


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Dispute of GuiltSeverity of Penalty/Mitigating FactorsProcedural InconsistenciesNew Evidence

6.6.3 Appeals against Verbal, Recorded and Severe Warnings in terms of 7.6.2 (i) and (ii)may be referred to the official at the level above the official who originally heard thecase. The decision of the Appeal Hearing Official shall be final and no further appeallevel shall be available.

6.6.4 Appeals against recommendations for Final Warnings and Dismissals shall be heardby the relevant Executive Committee member. If the sanction was originally imposedby a Manager, the accused may request the Disciplinary Review Committee to reviewthe case.

6.6.5 Appeals in terms of 7.6.2 (iii) shall be reviewed by the Human Resources Officer mayrefer the case back to the original Hearing Official for further investigation and/or re-hearing, where after the procedure as per 7.6.3 and 7.6.4 above shall apply.

6.6.6 Appeals in terms of 7.6.2 (iv) shall be heard by the original hearing Officer andthereafter in terms of 7.6.3 and 7.6.4. The decision as to whether the grounds ofappeal constitute new evidence shall rest with the Human Resources Officer with theemployee representative.

6.6.7 The employee shall be present at the appeal hearing and shall be entitled to arepresentative in terms of Section 6 of the Disciplinary Code, except at the DisciplinaryReview Committee level, where the procedure as outlined under 7.6.9 and 7.6.10 shallapply.

6.6.8 The Disciplinary Review Committee shall be chaired by the Operations manager andshall comprise the Human Resources Officer and Senior representatives of otherDepartment. .

6.6.9 When an employee requests that his case be referred to the Disciplinary ReviewCommittee for a review, he may at the same time request that he or his representativebe invited to make representation or motivate his grounds of appeal in person. TheDisciplinary Review Committee shall however review each case on its own merits andtake decisions independently.

6.6.10 The Disciplinary Review Committee shall have the authority to uphold or reduce apenalty imposed by the Head of Department. It will also have the authority to impose


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a more severe disciplinary action should it be found that the offence committedwarranted a more severe penalty. The Disciplinary Review Committee may refer acase back to the Head of Department or the Human Resources Officer for re-hearingor for further investigation.

6.6.11 The decision of the Disciplinary Review Committee will be final and should also beread in conjunction with 7.6.13. The Human Resources Officer shall inform theemployee of the decision of the Disciplinary Review Committee. In addition, theChairperson of the Disciplinary Review Committee will notify the employee of thedecision, in writing.

6.6.12 Should an appeal against dismissal be successful, the employee will be reinstatedretrospectively to the date on which his services were terminated and he will beadvised in writing to return to work. This also applies where an appeal against adismissal is reduced to a warning in terms of 7.6.3 (i).

6.6.13 In the event of the dismissal being upheld by the Disciplinary Review Committee, thedismissal shall be effective from the date of the employees services were terminatedby the Head of Department. The Chairman of the Disciplinary Review Committee shallinform the employee in writing of the outcome of the Committees Review.

6.6.14 It should be noted that the Disciplinary Review Committee, referred to above, shouldonly have the authority to review disciplinary cases that have been dealt with byManager.

Classification of Offences Guide to Disciplinary Action

Nature of Offence 1st

Offenc

e

2nd

Offenc

e

3rd

Offenc

e

4th

Offenc

e

Absenteeism

Absenteeism SW FW DC

Desertion DC

Offences related to control at work

Poor time keeping VW/RW SW FW DC

Sleeping of duty SW FW DC


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Sleeping on duty RW SW FW DC

Negligent loss, driving, damage or misuse of Company

property

RW SW FW DC

Unsatisfactory work performance RW SW FW DC

Offences related to Indiscipline or Disorderly behaviour

Disobedience & related offences (general) RW SW DC

Abuse and related offences

Abusive language

Insubordination

SW

SW

FW

FW

DC

DC

Disorderly behaviour and related offences

Disorderly Behaviour FW DC

Threatening violence FW DC

Assault/attempted assault FW DC

Fighting FW DC

Riotous behaviour FW DC

Sexual Harassment FW DC

Discrimination DC

Alcohol and drug offences

Intoxication while on duty FW DC

Wilful lose, damage or misuse of Company property FW DC

Offences related to dishonesty

Bribery or corruption

False evidence

Forgery and uttering

Misappropriation

Fraud

Theft of / unauthorised possession of Company property

DC

DC

DC

DC


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termination in the phils

Documents