How do you terminate employment of problem employees?

Employment Relations Rule

Once employed, the employee is presumed to have acquired job and employment security and he/she can not be removed by dismissal or termination unless for just and authorized causes. To a lesser degree, even suspension without due process is illegal as this may be considered “breach” of the employment contract between the employer and the employee.

HR Philosophy

The right to discipline is a Management right. Instilling discipline, forming desirable and productive behaviors and norms in the Company must stem from a clear Company Philosophy.

Just like most HR management functions, the duty to discipline is a line function, wielded by shopfloor supervisors and line managers. The responsibility to discipline when used effectively enhances the leadership skills and credibility of the supervisor and manager.

This is the Labor Code’s provision on just cause termination. We may simply define just cause termination as “employer initiated termination because of employee’s fault.” Art 282 provides for employer’s legitimate bases for initiating termination procedures– the substantive due process.

Art. 282.  Termination by employer.—An employer may terminate an employment for any of the following causes:

a)      Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

b)      Gross and habitual neglect by the employee of his duties;

c)      Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

d)      Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and

e)      Other causes analogous to the foregoing.

The how of termination is called procedural due process and the steps are provided in the Labor Code’s Implementing Rules: Book V, Rule XXIII.

Sec. 2. Standards of due process; requirements of notice. – In all cases of termination of employment, the following standards shall be substantially observed:

1. For termination of employment, the following standards on just causes as defined in Art. 282 of the Code:

• • A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;
  • A hearing or conference during which the employee concerned, with assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and
  • A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

Magulo ba? Masyadong matindi legalese?

Simple lang, i-summarize ko:

1. Dapat may rules ka on proper, restricted, regulated and prohibited behaviors for all employees. These rules must be applied for all work-related situations and circumstances. (see my entry on valid work rules.)
2. Publish these rules. Be sure to have proof that all employees regardless of employment status have been oriented regarding these rules.
3. When information of violation reaches you as superior of a subordinate, do an initial investigation.
4. The results of the initial investigation should give you an idea if the employee violated a rule. Parang probable cause ito sa korte.
5. Write the first notice as as described above. Some companies call this the “show cause” notice. I call it simply first notice. Better— charge notice.
6. Conduct the due process hearing. Tatlo yung role mu as boss– investigator, prosecutor, and judge. Be careful not to confuse your roles in front of the employee.
7. After the hearing, inform the employee when the decision regarding his case may be expected.
8. Best to arrive at a decision within a week after the first report of violation reached your office;  or days after your due-process hearing.
9. If your decision is to terminate, best to serve the notice to the employee before the end of office/work day, and to make sure that he clears his table as he will not be reporting back anymore.