To insert your company logo on this slide • From the Insert Menu • Select “Picture” • Locate your logo file • Click OK • To resize the logo • Click anywhere inside the logo. The boxes that appear outside the logo are known as “resize handles.” • Use these to resize the object. • If you hold down the shift key before using the resize handles, you will maintain the proportions of the object you wish to resize. Legal Aspects of Hiring, Discipline and Termination of Teachers Organized by: Paseo TLJ Education Services ULPIANO P. SARMIENTO III Teacher-Lawyer Ateneo de Manila University January 24, 2009
Pre-Employment Q:Is a health certificate issued by the city/municipal health officer of the locality where the school is located a pre-employment requirement? A: Yes. As provided by the Rules and Regulations Implementing PD 856, the Code on Sanitation of the Philippines:
No person shall be employed in any school without first securing a health certificate from the city/municipal health officer of the locality where the establishment is located. • Health certificates are non-transferable and shall be renewed annually (Sec. 11).
Q: May a school require job applicants to undergo drug-testing? A: Yes. According to the Rules and Regulations Implementing RA 9165, the Comprehensive Dangerous Drugs Act of 2002:
All job applicants may be required to undergo drug-testing and submit the result thereof as a pre-employment requirement. • The employer may deny hiring of applicant found positive for drug use and/or refuse to submit to a drug-test. • The cost of pre-employment drug-testing shall be shouldered by the applicant (DOLE Order No. 53-03).
Employment Q: What are the elements that determine the existence of employer-employee relationship? A: The elements that are generally considered are:
The selection and engagement of the employee; • The payment of wages/salaries; • The power of dismissal; and • The employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished.
Q: Among the elements, what constitutes the most important index of the existence of employer-employee relationship? A: It is the “control test” (Investment Planning Corp. vs. Social Security System, G.R. No. 19124, Nov. 18, 1967)
Q: Why is it important to determine whether the relationship between the parties is that of employer and employee? A: This is to determine what laws will govern the rights and liabilities of the parties, and what tribunal or court will have jurisdiction over their disputes.
Where there exists an employer-employee relationship, labor laws will govern the rights and liabilities of the parties, and labor tribunals will have jurisdiction over their disputes. • Where the relationship is one of principal and independent contractor, the ordinary rules on obligations and contracts will apply and the regular courts will have jurisdiction over their disputes.
I. Classification of School Personnel A. ACADEMIC PERSONNEL a. Teaching • School personnel who are formally engaged in actual teaching service or in research assignments, either on full-time or part-time
b. Non-Teaching • Personnel that posses certain prescribed academic functions directly supportive of teaching such as: • Registrars • Librarians • Guidance Counselors • Other Similar Persons • Industrial and job placement coordinators • Officials responsible for technical education and skills development matters (MRPS, Section 4 (m) No. 4 (c); and TVET, Section 4 (18), par. (c) (iii)
B. NON-ACADEMIC PERSONNEL School personnel usually engaged in administrative functions who are not covered under the definition of academic personnel. They may include school officials. (MRPS, Section 4 (m) No. 4 (d); and TVET, Section 4 (18), par. (c) (iv)
II. Significance of Distinction / Classification Section 89, MRPS and Section 73, TVET— “x x x the employment of teaching and non-teaching academic personnel shall be governed by such rules as may from time to time be promulgated in coordination with one another by the DepEd (CHED or TESDA) and the DOLE.
Conditions of employment of non-academic non-teaching school personnel xxx shall be governed by the appropriate labor laws and regulations.
Q: What is meant by “security of tenure” of an employee? A:Security of tenure of an employee is his/her right against unjust and arbitrary dismissal. He/She cannot be deprived of work, which is property in the constitutional sense, without a just or authorized cause and without the benefit of a hearing. It also includes his/her right against unwarranted transfers, demotion and diminution of benefits
III. Security of Tenure A. PROBATIONARY PERSONNEL a) Security of Tenure of Probationary Academic Personnel Unless otherwise provided by contract, school academic personnel under probationary employment cannot be dismissed during applicable probationary period.
Termination: Probationary Teachers Biboso vs. Victoria Milling Co., Inc. (76 SCRA 250) “The moment, however, the period expired in accordance with contracts freely entered into, they could no longer invoke the constitutional protection.” “Thereafter, the parties are free to renew the contracts or not. In the instant case where the petitioner did not wish to renew the contract of employment for the next school year, the complainant was not illegally dismissed. Her contract merely expired. (Colegio San Agustin)”
Esperanza Escorpizo vs. University of Baguio, G.R. No. 121962, April 30, 1999 “Escorpizo was entitled to security of tenure during the period of her probation but such protection ended the moment her employment contract expired xxx and she was not extended a new appointment. No vested right to a permanent appointment had as yet accrued xxx since she had not yet complied, during the probation, with the prerequisites necessary for the acquisition of permanent status. “ xxx (A)s respondent was not under obligation to renew Escorpizo’s contract xxx, her separation cannot be xxx without justifiable cause. xxx Escorpizo’s was not illegally dismissed. Her contract merely expired.”
Effect If Probationary Contract of Academic Personnel Does Not Stipulate Period of Employment Espiritu Santo Parochial School et al. vs. NLRC (76 SCRA 250) “SC said “x x x contracts involved here stipulate no period. In that eventuality, the 3 years probationary period provided for in MRPS must apply.”
N.B. To be VALID and BINDING upon the employee, the CONTRACT must be agreed to, expressed by SIGNING the CONTRACT. If the CONTRACT is NOT signed, it is deemed NOT ENFORCEABLE.
Effect If There Is No Enforceable Contract At All Pines City Education Center, et al. vs. NLRC (227 SCRA 655) “Eight (8) probationary teachers out of 10 signed contracts with fixed duration. Upon expiration of contract, all 10 were terminated. Supreme Court upheld dismissal of 8 teachers, but ordered reinstatement of two (2) who did not have contract.”
b) Security of Tenure of Probationary Non-academic Personnel Article 281 of the Labor Code provides— “The services of an employee who has been engaged on a probationary basis may be terminated: a) for just cause; or b) when he fails to qualify as a regular employee in accordance with reasonable standards x x x.”
Probationary Academic Probationary Non-Academic As to duration of maximum probationary period 3 consecutive SYs or 6/9 consecutive semester (Formal) or 4/8 consecutive semester (TecVoc) 6 months only As to the applicability to part-time personnel Does NOT apply. Consolidated Order No. 1 provides that PART-TIME never acquires regular status. Hence, NO PROBATIONARY EMPLOYMENT. Personnel must be full-time. Part-time becomes regular after working for a number of days which completes 6-months Resume of Distinctions In Law Between Probationary Academic Personnel And Probationary Non-academic
c) Security of Tenure of Regular or Permanent Status Section 93, MRPS— “Regular or Permanent Status. - Those who have served the probationary period shall be made regular or permanent. Full-time teachers who have satisfactorily completed their probationary period shall be considered regular or permanent.”
i. Regular Employment of Academic Personnel Three (3) requisites for private schools academic personnel to acquire permanent/ regular status— 1) The teacher must be a full-time teacher; 2) The teacher must have completed the probationary periods; and 3) Such service must have been satisfactory
(1) Full-time teaching or academic personnel are those meeting all the following requirements: i) Who possess at least the minimum academic qualifications prescribed by the DepEd, CHED and TESDA. ii) Who are paid monthly or hourly, based on the normal or regular teaching loads as provided for in the policies, rules and standards of the agency concerned.
iii) Whose regular working day of not more than 8 hours a day is devoted to the school; and iv) Who are not teaching full-time in any other educational institution. All teaching or academic personnel who do not meet the foregoing qualifications are considered PART-TIME.
B. Probationary Service Completed: Meaning a) Probationary service completed must be consecutive years or semester of full-time work. “Years” refers to “School Years” not to “calendar years” N.B. Assignment of teaching load during summer term immediately after 3rd year, 6th or 9th semester of teaching does NOT qualifyimplied regular appointment.
C. “Satisfactory Service” to be determined by Administration Made known either— • Expressly – appointment made designating personnel as regular / permanent • Impliedly – renewal of contract for the 4th consecutive school year / 7th or 10th consecutive semester
d) Security of Tenure of Regular or Permanent Academic Personnel When Academic Personnel acquire regular status, security of tenure is no longer limited by the term/period as stated in the contract. The academic personnel is assured of employment and cannot be dismissedexcept on grounds of professional incompetence or misconduct.
e) Regular Employment of Non-Academic Personnel Article 280 of the Labor Code— For an employee to be considered regular, he must be engaged to perform duties that are usually necessary or desirable to the employer’s ordinary course of business or trade.
To be SUCH: • Such engagement must last indefinitely and should not be fixed for a specific project or for a particular season. Article 280 of the Labor Code (2nd par)— Considers as regular anyone who has rendered at least one (1) year’s service, regardless of the nature of his duties. Such employee must be retained as long as his services are required and this does not need formal appointment.
Q: May an employee who enjoys security of tenure be validly dismissed? A:Yes. Security of tenure does not guarantee perpetual employment. If there is a just or authorized cause the employer may terminate the services of an employee; the former cannot be legally compelled to have in its employ a person whose continued employment is patently inimical to its interest.
Q: What are the consequences of the violation of an employee’s security of tenure? A:Art. 279 of the Labor Code provides that an employee who is unjustly dismissed from work shall be entitled to: • Reinstatement without loss of seniority rights and other privileges; and
Full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time his compensation was withheld from him/her up to the time of his/her actual reinstatement. • He/She may also recover moral and exemplary damages and attorney’s fees.
Employee Discipline Q:What is the intent of employee disciplinary procedure? A:The intent of the disciplinary procedure is to provide supervisors with a framework in which to communicate fairly, clearly and consistently with staff members in the event of work-related problems. Management rights must be exercised fairly and in accordance with the policies of the School. No employee shall be disciplined except for just cause and after due process shall have been observed.
Q: What is progressive discipline? A:It is discipline based on a predetermined formula which progresses from lesser discipline, such as a warning or counseling, to more severe discipline, such as suspension or termination. The discipline is accompanied by written documentation; a system of discipline where the penalties increase upon repeat occurrences.
Rene P. Valiao vs. Court ofAppeals, NLRC, West Negros College, (G.R. No. 146621. July 30, 2004) “Serious Misconduct and habitual neglect of duties are among the just causes for terminating an employee under the Labor Code. Gross Negligence connotes want of care in the performance of one’s duties. Habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances.xxx Repeated acts of absences without leave and frequent tardiness reflect an indifferent attitude to and lack of motivation in his work.”
Further, the totality of infractions or number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon erring employee. The offenses committed should not be taken singly and separately but on their totality. Fitness for continued employment cannot be compartmentalized into tight little cubicles as aspects of character, conduct and ability separate and independent of each other.
Q: What is summary discipline? A:Summary discipline is the exception to progressive discipline. For serious offenses, such as fighting, theft, insubordination, threats of dismissal may be the first and only disciplinary step taken. Any step or steps of the disciplinary process may be skipped at the discretion of the school after investigation and analysis of the total situation, past practice, and circumstances.
Q: Is it essential to document employee disciplinary matters? A:It is essential that all matters related to discipline be well documented and that there be consistency between the documentation on the disciplinary problem and any other documentation for the same period, such as performance reviews and merit increases.
Post-Employment Q: What are the just causes for the dismissal of an employee? A:Art. 282 of the Labor Code enumerates the just causes for the termination of the employment by the employer. They are: • Serious misconduct or willful disobedience by the employee of the lawful order of his/her employer or representative in connection with his/her work;
Gross and habitual neglect by the employee of his/her duties; • Fraud or willful breach by the employee of the trust reposed in him/her by his/her employer or his/her duly authorized representative; • Commission of a crime or offense by the employee against the person of his/her employer or any immediate member of his/her family or his/her duly authorized representative; and • Other causes analogous to the foregoing.
Q: What are considered as analogous causes? A:These are grounds or causes which are characterized by fault or culpability on the part of the employee. One such analogous cause is inefficiency.
Q: Aside from the grounds enumerated in Art. 282 of the Labor Code, are there other lawful causes for the dismissal of employees? A:Yes. These are the “authorized causes”: • Redundancy • Retrenchment to prevent losses • Closure or cessation of the establishment or undertaking unless the closure or cessation is for the purpose of circumventing the provisions of the law (Art. 283, Labor Code) • Disease (Art. 284, Ibid.)
A. Failure to Obtain Professional License Sec. 27, RA 7836— “No person shall practice xxx teaching profession xxx without license.” PRC Resolution No. 600 s. 1997— “Those who fail to register by September 20, 2000 shall forfeit their privilege to practice teaching xxx.”
However, in the case of Gloria Jean R. Chaves vs. NLRC, St. Bridget School, et al., G.R. No. 166382, June 27, 2006, the Supreme Court appears to have disregarded the clear mandate of the law when it quoted in the above case the letter of then Secretary of Education, Raul Roco that private schools should “xxx maintain status quo of your teaching staff and ensure that the right to education is protected and enhanced.”