PROPER HANDLING OF ADMINISTRATIVE PROCEEDINGS

8/7/2019 PROPER HANDLING OF ADMINISTRATIVE PROCEEDINGS

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PROPER HANDLING OFPROPER HANDLING OFADMINISTRATIVEADMINISTRATIVE

PROCEEDINGSPROCEEDINGS


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Basic Presumptions:Basic Presumptions:

Existence of EmployerExistence of Employer--EmployeeEmployeeRelationshipRelationship


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The 4The 4--Way Test of DeterminingWay Test of Determining

EmployerEmployer--Employee Relationship:Employee Relationship:

1.1.Selection and Engagement;Selection and Engagement;

2. Power of Dismissal;2. Power of Dismissal;

3. Payment of Wages; and3. Payment of Wages; and

4. Power of Control.4. Power of Control.


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Type of Employment: (In relationType of Employment: (In relation

to right of workers to security ofto right of workers to security of

tenure)tenure)

1.1. Project EmployeesProject Employees


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2.Non

2.Non--Project EmployeesProject Employees

a) Probationarya) Probationary


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b) Regular Employees: ( Byb) Regular Employees: ( Bynature of work or by years ofnature of work or by years ofservice)service)


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The test is whether the particularThe test is whether the particular

activity performed by theactivity performed by theemployee is usually necessary oremployee is usually necessary ordesirable in the trade or businessdesirable in the trade or business


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Those who have rendered atThose who have rendered atleast one year of service, whetherleast one year of service, whether

continuous or broken, withcontinuous or broken, withrespect to the activity in whichrespect to the activity in whichthey are employed (e.g.they are employed (e.g.Seasonal)Seasonal)


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c) Casual Employeesc) Casual Employees

Those employed for a shortThose employed for a short

term period to perform work notterm period to perform work notrelated to the main line of therelated to the main line of thebusiness of the employer.business of the employer.


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3. Fixed Period Employment3. Fixed Period Employment


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Due Process:Due Process:

SubstantiveSubstantive

ProceduralProcedural


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Administrative Hearing :Administrative Hearing :

A means of Dealing with erringA means of Dealing with erringemployeesemployees


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Things to Consider:Things to Consider:

1. Existence of Company Rules and1. Existence of Company Rules andPolicies;Policies;

2. There is a violation of said rules and2. There is a violation of said rules andpolicies;policies;

3. Violation of the Labor Code as amended3. Violation of the Labor Code as amendedin lieu of lack or inexistent company rulesin lieu of lack or inexistent company rulesand procedures.and procedures.


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Termination of Employment underTermination of Employment under

the Labor Co

de as

Amen

ded:t

he Labor Co

de as

Amen

ded:

Just Causes (Under Art. 282 )Just Causes (Under Art. 282 )

a. Serious misconduct or willfula. Serious misconduct or willfuldisobedience by the employee ofdisobedience by the employee ofthe lawful orders of his employerthe lawful orders of his employer

or representative in connectionor representative in connectionwith his work;with his work;


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b. Gross and habitual neglect byb. Gross and habitual neglect bythe employee of his duties;the employee of his duties;


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c. Commission of a crime orc. Commission of a crime oroffense by the employee againstoffense by the employee againstthe person of his employer orthe person of his employer or

any immediate member of hisany immediate member of hisfamily or his duly authorizedfamily or his duly authorizedrepresentative; andrepresentative; and


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4. Other causes analogous to the4. Other causes analogous to theforegoing.foregoing.


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AUTHORIZED CAUSESAUTHORIZED CAUSES

1)1) Installation of Labor Saving device;Installation of Labor Saving device;

2)2) Redundancy;Redundancy;


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3)3) Retrenchment to Prevent Losses; andRetrenchment to Prevent Losses; and

4)4) Cessation of Operation.Cessation of Operation.


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PROCEDURE TO TERMINATEPROCEDURE TO TERMINATE

EMPLOYMENT

EMPLOYMENT

1)1) TwoTwo--Notice RuleNotice Rule

11ststNotice = apprises the employee of the particular actsNotice = apprises the employee of the particular actsor omissions for which his dismissal is sought; andor omissions for which his dismissal is sought; and

22ndnd Notice = subsequent notice which informs theNotice = subsequent notice which informs theemployee of the employers decision to dismiss him.employee of the employers decision to dismiss him.


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2)2) HearingHearing

3)3) Preventive SuspensionPreventive Suspension

4)4) TurnTurn--overover

5)5) ClearanceClearance


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Procedure if the Cause ofProcedure if the Cause of

Dismissal is Criminal in NatureDismissal is Criminal in Nature

1)1) Filing of Complaint/Information;Filing of Complaint/Information;

2)2) The City Prosecutors Office wouldThe City Prosecutors Office woulddetermine if a Preliminary Investigationdetermine if a Preliminary Investigation(PI) is required;(PI) is required;

3)3) Resolution by the Prosecutors Office;Resolution by the Prosecutors Office;


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3)3) Resolution by the Prosecutors Office;Resolution by the Prosecutors Office;

4)4) Filing of action with the Proper Court.Filing of action with the Proper Court.


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Procedure Before the NLRCProcedure Before the NLRC

1)1) Dismissed Employee fillsDismissed Employee fills--up a proup a pro--forma complaint at the NLRC;forma complaint at the NLRC;

2)2) Mandatory Conference;Mandatory Conference;

3)3) Filing of Position Paper;Filing of Position Paper;

4)4) AppealAppeal


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Note:Note:

The decision of the Labor Arbiter of reinstatementThe decision of the Labor Arbiter of reinstatementof employee is immediately executory.of employee is immediately executory.

The losing employer is required to post a bondThe losing employer is required to post a bondwithin 10 days from receipt decision or order.within 10 days from receipt decision or order.


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End of presentationEnd of presentation

THANK YOU...THANK YOU...

PROPER HANDLING OF ADMINISTRATIVE PROCEEDINGS

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