Entitlement to backwages due to illegal dismissal October 27, 2013 7:49 pm by PERSIDA ACOSTA Dear PAO, If a permanent employee

is illegally dismissed, what is his remedy and how much is he entitled to because of this? Alaine Dear Alaine, According to the Labor Code of the Philippines, an employee who was illegally terminated from work is entitled to full backwages and reinstatement without loss of seniority rights and other benefits. This is particularly provided under Article 279 of the said law, to wit: ARTICLE 279. Security of tenure.-xxx 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 or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Although, there is no mention in the said law of an award of separation pay in cases where reinstatement is no longer possible due to the strained relationship or the tension created between the employer and the employee because of the illegal dismissal, jurisprudence is replete with cases involving the award of separation pay instead of reinstatement. In the case of Golden Ace Builders vs. Jose A. Talde (G.R. No. 187200, May 5, 2010), the Supreme Court enunciated the following: [T]he award of separation pay is inconsistent with a finding that there was no illegal dismissal, for under Article 279 of the Labor Code and as held in a catena of cases, an employee who is dismissed without just cause and without due process is entitled to backwages and reinstatement or payment of separation pay in lieu thereof: Thus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages. The normal consequences of respondents illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation

pay is in addition to payment of backwages. (Emphasis, italics and underscoring supplied). To assert his/her rights, an employee who was illegally terminated from employment may file a labor complaint before the National Labor Relations Commission, a quasijudicial agency tasked to adjudicate labor cases. Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter. Title I TERMINATION OF EMPLOYMENT Art. 278. Coverage. The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not. Art. 279. Security of tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a 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 or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21, 1989) Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. Art. 281. Probationary employment. Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes: 1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; 2. Gross and habitual neglect by the employee of his duties; 3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; 4. 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 representatives; and 5. Other causes analogous to the foregoing. Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. Art. 284. Disease as ground for termination. An employer may terminate the services of an employee who has been 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: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year. Art. 285. Termination by employee. 1. An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages.

2. An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes: 1. Serious insult by the employer or his representative on the honor and person of the employee; 2. Inhuman and unbearable treatment accorded the employee by the employer or his representative; 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and 4. Other causes analogous to any of the foregoing. Art. 286. When employment not deemed terminated. The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.

Just Causes for Termination of Employee Definition Just causes for dismissal of employee may be defined as those lawful or valid grounds for termination of employment which arise from causes directly attributable to the fault or negligence of the erring employee.Just causes are usually serious or grave in nature and attended by willful or wrongful intent or they reflected adversely on the moral character of the employees. As opposed to authorized causes under Article 283 wherein the termination of employment is dictated by necessity of the business, the dismissal under just causes is imposed by the employer to the erring employee as a punishment for the latters acts or omission. Just Causes Under the Labor Code Just causes for termination under the Labor Code is found in Article 282 and enumerated here as follows: 1. Serious misconduct. Serious misconduct is an improper conduct willful in character and of such grave nature that transgressed some established and definite rule of action in relation to the employees work.

2. Willful disobedience to lawful orders. The employees are bound to follow reasonable and lawful orders of the employer which are in connection with their work. Failure to do so may be a ground for dismissal or other disciplinary action. 3. Gross and habitual neglect of duties. Gross negligence has been defined as the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. 4. Fraud or willful breach of trust / Loss of confidence. Fraud is any act, omission, or concealment which involves a breach of legal duty, trust, or confidence justly reposed and is injurious to another. 5. Commission of a crime or offense. Commission of a crime or offense by the employee against his employer or any immediate member of his family or his duly authorized representative, is a just cause for termination of employment. 6. Analogous causes. Other causes analogous to the above grounds may also be a just cause for termination of employment. Examples of Analogous Causes 1. Abandonment. Abandonment of job is a form of neglect of duty. There is abandonment when the employee leave his job or position with a clear and deliberate intent to discontinue his employment without any intention of returning back. 2. Gross inefficiency. Gross inefficiency is analogous to and closely related to gross neglect for both involve acts or omissions on the part of the employee resulting in damage to the employer or to his business. (See Lim vs. NLRC, G.R. No. 118434, July 26, 1996.) 3. Disloyalty/conflict of interest. Disloyalty exists when one asserts an interest, or performs acts adverse to ones employer, such as secretly engaging in a business which renders him a competitor and rival of his employer. It constitutes a breach of an implied condition of the contract of employment. (See Elizalde International vs. Court of Appeals, G.R. No. L40553 February 26, 1981.) 4. Dishonesty. Acts of dishonesty deemed to be patently inimical to the employer is analogous to breach of trust and is a valid cause for termination of employment.

Q: What are the steps to follow to ensure that the dismissed employee is given due process? A: a. Notice of Dismissal The employer shall furnish the workers a written notice stating the particular acts or omissions constituting the grounds for his dismissal. In cases of abandonment of work, the notice shall be served at the workers last know n address.

b. Answer The worker may answer the allegations stated against him in the notice of dismissal within a reasonable period. c. Hearing The employer shall afford the worker ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires. d. Notice of decision The employer shall immediately notify a worker in writing of a decision to dismiss him stating clearly the reasons therefor.