Job security and management prerogatives
Ignorance of our labor laws should never excuse any employer or employee from compliance. That is why we are advocating for workers' and employers' education as a proactive strategy. And, by this column, we are trying to help prospective complainants and respondents in labor litigation, by sharing with them the fundamentals in labor-management relations. The reason why there are thousands of labor cases pending in the dockets of our Labor Arbiters, in the National Labor Relations Commission and the DOLE is largely because of ignorance of the law. The big law firms are earning millions in attorney's fees due to this endemic lack of proper and adequate knowledge. The HR and personnel managers should undertake some draconian measures, like a series of learning sessions, to help both personnel and management.
Let us start with the fundamental concepts of job security and management prerogatives. It is basic that under our laws, regular workers enjoy tenurial security, that is: they cannot be dismissed unless management can prove, by substantial evidence, that the employees have committed acts that may constitute as just causes for termination. That is the substantive element. The procedural part is called due-process, that is: first, the employee must be issued a written charge which specifies the act constituting the offense; second, he or she must be given an opportunity to be heard, including the right to be assisted by a lawyer of his/her choice and the right to present evidence to support his/her defense. Third, the employee must be given a written notice of the decision, either finding guilt or absolving from any liability.
While employees have job security, management has the inherent prerogative to hire, assign, transfer, promote, discipline or dismiss any of them for cause and after due process. Management prerogative is an essential component of the employers' rights to manage their business. Thus, the government cannot just deprive management of these prerogatives, otherwise, the rights of employers may also be violated. Under our system of labor laws, the mandate to afford full protection to labor does not mean that employers should be oppressed or deprived of their fundamental rights to manage their business in a manner that they best think is for the attainment of profits. Therefore, it can be said, and rightly so, that labor laws demand a delicate balancing act on the part of government.
The prerogative of employers to hire means that they can choose the best from among job applicants, and their choice cannot be attacked as a form of discrimination, except if the discrimination is based on gender, religion or marital status. Employers can not disqualify one because she is a woman or LGBT, or that she is not a Catholic, or that he is married or is a single parent. But certainly, employers can disqualify applicants because of age, lack of education, limited height or excessive weight, or is diagnosed to be hypertensive, or she has a tattoo, or wears a ring in his nose. These are valid disqualifying criteria, in the exercise of management prerogatives. In fact, it is perfectly legal for an employer to state that only applicants from UV, Gullas Law School or the Vicente Gullas School of Medicine may apply. That is the right of the employer. No union or government agency can tell employers otherwise.
Also, employees cannot refuse any valid assignment or transfers. For such would constitute insubordination. Any form of willful disobedience to a lawful order given by a superior in relation to work, may be a just cause to dismiss. The Supreme Court has consistently upheld the right of employers to dismiss disobedient employees, most especially managerial personnel. To whom much has been given, much is expected. Thus managers must be the first to obey. However, the prerogative to transfer must not be abused nor be used to harass, persecute or ease out personnel. Any transfer that carries a demotion in rank or a diminution in salaries may be questioned as a form of constructive dismissal, or a disguised form of transfer that can be construed (hence, constructive) as illegal dismissal.
Any victim of illegal dismissal may be ordered reinstated with full backwages, or if reinstatement is no longer feasible, to a payment of separation pay of one month pay for every year of service, a fraction of at least six months being considered as one year, (in addition to backwages). If the dismissal was done in a manner that violates the basic rights of the employee, and when he suffers mental anguish, serious anxiety, wounded feelings or social humiliation (say, his photo was published unduly in the newspapers), then moral damages may be awarded as well, exemplary damages may also be awarded if the manner of termination was high-handed, abusive and insulting.
Attorney's fees are also given for compelling the personnel to spend legal fees to fight for his/her right.
By the way, employers cannot terminate employees. They can only terminate the services. To terminate personnel is murder.
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