Security of Tenure bill not a safety net for 'habitual absentees'

MANILA, Philippines (Updated 4:40 p.m.) — The vetoed Security of Tenure bill would not have prevented employers from firing their workers for just cause, including the "habitual absentees."

In explaining his decision to veto the "end endo" bill, which regulates labor contracting and grants security of tenure to contractual workers, Duterte said "the security of tenure should also provide the security of the capital."

In a report by The STAR, Duterte said that security of tenure would mean workers who are "lazy, incompetent or who have 'no IQ'" could question their termination before a labor arbiter or the National Labor Relations Commission.

He said employers would then "be facing cases instead of helping his fellowmen, he would have a problem and it has happened many times." 

The NLRC says on its website that its mission is "to resolve labor disputes in the fairest, quickest, least expensive and most effective way possible."

Duterte said that "the habitual absentees, when you ask them to leave, they will go to NLRC to go back to work, that's not good."

In a statement on Monday, Bukluran ng Manggagawang Pilipino called the president's arguments "hogwash."

The socialist labor group said: "Under present laws, most specially under his regime, workers are in no place to abuse their employers."

The group added that "there is nothing to protect employers from [when] their employees are stripped of all political and economic rights and are always at the mercy of their employers up to the point that they have to endure below minimum wages, no security of tenure and lacking in mandatory benefits just to make a living."

BMP added employers have the six-month probationary period and other mechanisms "to address underperforming and low IQ workers."

The group said that the president's decision to veto the bill he had previously certified as urgent "speaks volumes of his true colors" on where he stands on workers' issues.

RELATED: Duterte vetoes ‘endo’ bill

Just causes for termination

Senate Bill 1826, the version adopted by the House of Representatives and that was sent to the Palace for Duterte's signature only says that an employee, "irrespective of employment status or position" cannot be fired "except for a just cause."

That provision already exists in the Labor Code, although the SOT bill amends it to state that "the employer shall have the burden of proving that the termination is with cause and due process."

But according to a Bureau of Labor Relations briefer on termination of employment under current laws, the "duty of proving that the dismissal is valid" lies with the employer.

Among the just causes are:

• Serious misconduct or willfull disobedience to lawful and work-related orders
• Gross and habitual neglect of duties
• Fraud or willful breach of an employer's trust
• Commission of a crime or offense against an employer or their family

RELATED: Duterte defends decision to veto 'end endo' bill

'Habitual absenteeism' is neglect of duty

In its decision in the case of Japos v First Agrarian Reform Multi-purpose Cooperative, the Court of Appeals upheld a decision of a labor arbiter that the dismissal of an employee for habitual absences was valid.

The court said:

"Settled is the rule that an employee's habitual absenteeism without leave, which violated company rules and regulation, is sufficient to justify termination from the service. In the case of R.B. Michael Press vs. Galit, it was ruled that habitual tardiness and/or absenteeism is a form of neglect of duty as the same exhibit the employee's deportment towards work and is therefore inimical to the general productivity and business of the employer. This is especially true when the tardiness and/or absenteeism occurred frequently and repeatedly within an extensive period of time."

The Supreme Court upheld that decision, which is cited in the BLR briefer.

Employees who want to contest their termination can do so on the substantive aspect of the dismissal—meaning "the absence of a just or authorized cause" for it—or on the procedural aspect—the alleged "failure of the employer to give the employee the opportunity to explain [their] side," the Bureau of Labor Relations says.

'Two-notice rule'

The BLR also says that procedural due process involves the "two-notice rule," where an employer must give "a notice of intent to dismiss, specifying the ground for termination" and giving the employee "reasonable opportunity" to explain their side.

The employee must also hold "a hearing or conference where the employee is given opportunity to respond to the charge, present evidence or rebut the evidence presented against them." After that, the employer must issue "a notice of dismissal indicating that upon due consideration of all the circumstances, grounds have been established to justify termination."

The law also allows termination for "authorized cause" like the installation of labor-saving devices, redundancy, retrenchment, and the closure of the business. Under the Labor Code, termination is also authorized if the employees is "found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees."

In those cases, the law requires the employer to issue "a written notice of dismissal to the employee specifying the grounds at least 30 days before the date of termination." A copy of the notice must also be sent to the Department of Labor and Employment regional office where the employer is.

'End Endo' bill refiled

In his veto statement on the bill, Duterte said he believes "the sweeping expansion of the definition of labor-only contracting destroys the delicate balance and will place capital and management at an impossibly difficult predicament with adverse consequences to the Filipino workers in the long term." 

Duterte had promised to end "endo," or the hiring of workers for short-term contracts and without benefits, but last year said putting an end to labor contractualization is in the hands of Congress.

"Businesses should be allowed to determine whether they should outsource certain activities or not, especially when job-contracting will result in economy and efficiency in their operations, with no detriment to the workers, regardless of whether this is directly related to their business," he also said.

Sen. Joel Villanueva on Monday refiled the Security of Tenure bill at the Senate. He said it was the same bill that was vetoed and that he filed it so the executive branch can pinpoint which provisions of the bill it has issues with. 

LOOK | Copy of Senate Bill 806 or the Security of Tenure bill refiled by Sen. Joel Villanueva after the measure was vetoed by Pres. Duterte last week. (via @News5AKSYON / @maeannelosbanos) pic.twitter.com/sGixhTMYBo

— ONE News PH (@onenewsph) July 29, 2019

"We will not give up the fight. I will still refile it because at the end of the day, the social protection of our workers is important. It is more important than what unscrupulous business organizations could gain," he said over the weekend as the vowed to push for the bill in the 18th Congress.