Professional Documents
Culture Documents
BOOK SIX:
POST
TITLE ONE.
TERMINATION OF EMPLOYMENT
ART. 285 (formerly Art. 279)
In cases of regular employment, the
employer shall not terminate the services of
an employee except for just cause or when
authorized by this Title. An employee who is
unjustly dismissed from work shall be
entitled to reinstatement without loss of
seniority rights and other privileges and to
his full backwages, inclusive of allowances,
and to his other benefits of monetary
equivalent computed from the time of his
compensation was withheld from him up to
the time of his actual reinstatement.
SECURITY OF TENURE is the constitutional
right granted the employee, that the
employer shall not terminate the services of
an employee without just cause or when
authorized by law. It includes regular
(permanent) as well as not regular
(temporary) employment.
Note: Not every performance of services for
a fee creates an employer-employee
relationship. To hold that every person who
renders services to another for a fee is an
employee to give meaning to the security
of tenure clause will lead to absurd results.
Security of tenure clause is not
confined to cases of termination of employer
employee relationship alone. It is also
intended to shield workers from unwarranted
and unconsented demotion and transfer.
Consequences of the Violation of a
Workers Security of Tenure
1. Reinstatement without loss of seniority
rights and other privileges;
2. Full backwages inclusive of allowances
and other benefits or their monetary
equivalent computed from the time his
compensation was withheld from him
up to the time of his actual
reinstatement; and
3. Recovery of moral and exemplary
damages and attorneys fees.
Forms of Reinstatement
1. Actual or Physical Reinstatement the
employee shall be admitted back to
work.
2. Payroll Reinstatement the employee
is merely reinstated in the payroll.
Effect of the Reversal of Labor Arbiters
Decision to the Reinstated Employee
When the decision of the Labor Arbiter
reinstating the employee was reversed in
appeal by the NLRC in Supreme Court ruled
that it is obligatory on the part of the
employer to reinstate the employee and pay
his wages during the period of appeal and
the decision of the Labor Arbiter was
reversed by the higher or highest court.
Further, the court ruled that the Labor
Arbiters
order
of
reinstatement
is
immediately executor and no writ of
execution is necessary to implement the said
order of reinstatement. (Garcia vs. Phil.
Airlines)
Court may order the reinstatement even
if the prayer of the complaint did not
include such relief
So long as there is a finding that the
employee was illegally dismissed, the court
can order the reinstatement of an employee
even if the complaint does not include a
prayer for reinstatement, unless, of course,
the employee has waived his right to
reinstatement. By law, an employee who is
unjustly
dismissed
is
entitled
to
reinstatement, among others. The mere fact
that the complaint did not pray for
reinstatement
will
not
prejudice
the
employee, because technicalities of law and
procedure are frowned upon in labor
proceedings.
Note: If there is an order of reinstatement
but the position is no longer available, the
employee should be given a substantially
equivalent position.
If no substantially
equivalent
position
is
available,
reinstatement should not be ordered
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Paid as a wherewithal
or assistance during
the period that an
employee is looking
for
another
employment.
Oriented towards the
future.
Separation
pay
cannot be paid in lieu
of backwages.
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iii.
i.
Test of Regularity
Nature of Work Test whether or
not there is reasonable connection
between
particular
activity
performed by the employee in
relation to the usual business or
trade of the employer. If usually
necessary or desirable in the usual
business or trade of the employer,
the employment is deemed regular
employment.
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ART.
287
(formerly
Art.
281):
PROBATIONARY EMPLOYMENT
Probationary employment shall not
exceed six (6) months from the date the
employee started working, unless it is
covered
by
apprenticeship
agreement
stipulating a longer period. The services of
an employee who has been engaged in a
probationary basis may be terminated for a
just cause or when he fails to qualify as a
regular employee in accordance with
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