Legal Aspects of Hiring, Legal Aspects of Hiring, Discipline and Termination Discipline and Termination

of Teachersof Teachers

ULPIANO P. SARMIENTO III

Teacher-Lawyer

Ateneo de Manila UniversityJanuary 24, 2009

Organized by:

Paseo TLJ Education Services

Pre-EmploymentPre-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).

EmploymentEmployment

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)

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)

B. NON-ACADEMIC PERSONNEL

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

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.

III. Security of Tenure

A. PROBATIONARY PERSONNEL

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

“The services of an employee who has been engaged on a probationary basis may be terminated:

Article 281 of the Labor Code provides—

a) for just cause; or

b) when he fails to qualify as a regular employee in accordance with reasonable standards x x x.”

Resume of Distinctions In Law Between Probationary Academic Personnel And Probationary Non-academic

Does NOT apply. Consolidated Order No. 1 provides that PART-

TIME never acquires regular status. Hence, NO PROBATIONARY

EMPLOYMENT. Personnel must be full-time.

As to the applicability to

part-time personnel

6 months only3 consecutive SYs or 6/9 consecutive semester (Formal)

or 4/8 consecutive semester (TecVoc)

As to duration of maximum probationary

period

Probationary Non-Academic

Probationary Academic

Part-time becomes regular after working for a

number of days which completes 6-

months

Probationary Academic Probationary Non-Academic

As to SECURITY OF TENURE

Security of Tenure limited by the period/term of probationary contract.

That is, upon expiration thereof, employment may

cease if not renewed.

Security of tenure is not limited by term in the probationary contract.

Employment is not severed by mere expiration thereof. Authorized or just causes

must exist to terminate probationary employee.

As to attainment of REGULAR / PERMANENT

STATUS

Requires: (a) teacher must be full-time; (b) teacher must have

completed the probationary period; and

(c) such service must have been satisfactory

Must be engaged, to perform duties that are usually necessary or

desirable to the employer’s ordinary course of business.

Allowed to work beyond 6 months, he/she becomes

REGULAR

“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.”

Section 93, MRPS—

c) Security of Tenure of Regular or Permanent Status

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.

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.

iii) Whose regular working day of not more than 8 hours a day is devoted to the school; and

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 qualify implied regular appointment.

C. “Satisfactory Service” to be determined by Administration

• Expressly – appointment made designating personnel as regular / permanent

• Impliedly – renewal of contract for the 4th consecutive school year / 7th or 10th consecutive semester

Made known either—

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 dismissed except on grounds of professional incompetence or misconduct.

d) Security of Tenure of Regular or Permanent 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.

e) Regular Employment of Non-Academic Personnel

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.

To be SUCH:

Such engagement must last indefinitely and should not be fixed for a specific project or for a particular season.

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.

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.

Employee DisciplineEmployee Discipline

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.

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;

Post-EmploymentPost-Employment

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.)

Causes of TERMINATION

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.”

B. Violation of Code of Ethics For Professional Teachers

Article XII, Section 1—

“Any violation xxx shall be sufficient ground for the xxx revocation of xxx license xxx”

The employee who has consistently shown his inability to efficiently perform his duties and responsibilities, within a common performance standards

C. Inefficiency and Incompetence in the Performance of Duties

Every teacher shall uphold the highest possible standards of quality education, shall make the best preparation for the career of teaching, and shall be at his best at all times in the practice of his profession.

In short—A teacher is expected to be efficient and

competent in the performance of his academic duties at all times.

Otherwise,A teacher who has consistently shown his

inability to efficiently perform his duties and responsibilities, within a common performance standards should not be allowed to stay in school xx.

The MRPS provides as just cause of terminating a faculty--

“Gross inefficiency and incompetence in the performance of his duties xxx.”

(Section 94 (a))

Hence, the Supreme Court held in Evelyn Peña vs. NLRC that—

“x x x schools can set high standards of efficiency for its teachers since quality education is a mandate of the Constitution x x x security of tenure x x x cannot be used to shield incompetence.”

D. Absences/Tardiness

to be considered valid causes for termination under Section 94 of MRPS, Section 78 of TVET Manual and Article 283 of the Labor Code, absences and tardiness must be habitual and inexcusable.

ISSUE:When is there “HABITUALITY” in the absences

and tardiness?

ANSWER:1) School policy may fix a maximum number of

absences or tardiness, in excess of which shall be considered as ‘habitual’ and hence, if also inexcusable, shall be tantamount to inefficiency and incompetence.

N.B.

• Policy must be made known to all personnel concerned

• The maximum number must be reasonable.

2) In the absence of an existing school policy, the maximum number of absences for students as provided for in Section 73 of MRPS may be applicable.

REASON:

Rule in Section 73 is based on the presumption that a student needs to attend at least 80% of class days or hours to complete the course.

Hence, if a teacher incurs absences of more than 20% of his class hours, then the teacher failed to complete the course. Such is incompetence in its HIGHEST FORM.

ISSUE:

What if the frequency of absences is “Habitual” in character but EXCUSABLE? Can teacher be terminated?

ANSWER:

Supreme Court said—

“A working mother who has to frequently absent because she has also to take care of her child may also be removed because of her poor attendance, xxx however, the award of separation pay would be sustained under the social justice xxx.” (PLDT vs. NLRC, 164 SCRA 671)

Rene P. Valiao vs. CA, NLRC and Western Negros College, G.R. No. 146621, July 30, 2004

“Repeated acts of absences without leave and frequent tardiness reflect an indifferent attitude to and lack of motivation in his work.”

Supreme Court declared—

E. NEGLECT OF DUTY

Neglect is defined as the failure to carry out an expected or required action through carelessness or by intention.

As a rule, “Neglect of Duty”, to be ground for termination, must be both GROSS and HABITUAL.

Single or isolated acts of negligence do not constitute just cause for dismissal

But if the negligent act results to substantial loss/damage to property or injury to person, habituality is NOT necessary to justify dismissal

i. Failure to Exercise Parental Responsibility

“The school, its administrators and teachers, xxx engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, xxx.”

Article 218, Family Code

“A teacher shall recognize that the interest and welfare of learners are his first and foremost concern, and shall handle each learner justly and impartially.”

(Article VII, Section 2)

Clearly, a teacher or school personnel required to exercise special parental responsibility but who fails to observe all the diligence of a good father of a family in the custody and care of the pupils and students, shall be held liable for gross neglect of duty.

Parental Responsibility

The student while in school, is in the custody and hence, the responsibility of the school authorities as long as he is under the control and influence of the school, whether the semester has not yet begun or has already ended.

In Amadora vs. CA, the Supreme Court said—

“Even if the student is just relaxing in the campus xxx the student is still within the custody and subject to the discipline and responsibility of the teachers xxx.”

ii. Unreasonable Delay to Submit Students’ Grades

A teacher should be held answerable for failure to submit grades or reports on time in accordance with the reasonable deadline.

BP 232 mandates that teachers shall “(r)ender regular reports on performance of each student and to the latter and the latter’s parents or guardians with specific suggestions for improvement.”

In the recent case of University of the East vs. Romeo A. Jader, the Supreme Court, in no uncertain terms, declared—

“The court takes judicial notice of the traditional practice in educational institutions wherein (teacher) directly furnishes xxx students their grades. It is the contractual obligation of the school (through the teachers) to TIMELY INFORM AND FURNISH sufficient notice and information to each and every student xxx.”

“xxx The negligent act of a (teacher) who fails to observe the rules of the school, for instance, by not promptly submitting a student’s grade is not only imputable to the teacher but is an act of the school being his/her employer xxx.”

iii. Neglect to Keep School Records

School Personnel do have the duty to keep the school records of each of his students.

Duty is based on the pupils’/students’ or their parents’ rights to access to their own school records and the issuance thereof at least within thirty (30) days from request.

F. Immorality/Grave Misconduct

School employees, particularly teachers and other academic personnel, are definitely bound by the rule that immorality is a valid cause for termination. For as teachers, they serve as an example to the pupils and the students, especially during their formative years.

Query:

Is GRAVE MISCONDUCT/IMMORALITY committed by School Personnel outside the school campus and beyond school hours a valid ground or just cause for termination?

Meaning of Grave Misconduct

Which is—

• The willful, improper behavior, and implies wrongful intent and NOT mere error of judgment

• Violation of an established and definite rule of action

Labor Jurisprudence

For GRAVE MISCONDUCT to be valid and just cause for termination—

“xxx must be a DIRECT RELATION to and CONNECTED with performance of official duties.”

As a rule—

MISCONDUCT outside workplace/beyond working hours NOT a valid ground to terminate employee

Is this applicable to school administrators

or teachers?

Constitutional Duty

“All educational institutions xxx shall teach the right and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline.

HENCE—

“Every teacher shall merit reasonable social recognition for which purpose he shall behave with honor and dignity at all times and refrain from such activities as gambling, smoking, drunkenness and other excesses, much less illicit relations.”

(Code of Ethics, Article III, Section 3)

“A teacher shall place premium upon self-respect and self-discipline as the principle of personal behavior in all relationships with others and in all situations.”

(Code of Ethics, Article XI, Section 2)

“A teacher shall maintain at all times a dignified personality which could serve as model worthy of emulation by learners, peers, and others.”

(Code of Ethics, Article XI, Section 3)

Joseph Santos vs. NLRC, Hagonoy Institute, Inc.

“As teacher, (one) serves as an example to his/her pupils xxx.

Consequently xxx teachers must adhere to the exacting standards of morality and decency. xxx A teacher both in his official and personal conduct must display exemplary behavior.”

He must freely and willingly accept restrictions on his conduct that might be viewed irksome xxx the personal behavior of teachers, IN AND OUTSIDE THE CLASSROOM, must be beyond reproach xxx they must observe a high standard of integrity and honesty.”

i. Giving Failing Students Passing Grades They Did `Not Deserve

Section 79 of the MRPS provides that the final grade or rating given to a pupil or student in a subject should be based solely on his scholastic performance.

G. OTHER MISCONDUCTS

Thus, it is not a matter of discretion on the part of the teachers in the giving of the students’ grades, but rather it is a clear obligation for the teachers to determine student academic marks solely based on scholastic performance. For a teacher to do otherwise, would be serious academic malpractice or grave misconduct in the performance of his/her duties.

ii. Influencing a Co-Faculty to Change Grade

In the case of Wilfredo T. Padilla vs. NLRC and San Beda College, the Supreme Court said—

“This Court is convinced that the pressure and influence exerted by petitioner on his colleague to change a failing grade to a passing one, x x x constitute serious misconduct, which is a valid ground for dismissing an employee.”

However, in the case of NLRC, St. Jude Catholic School, et al. vs. Bernadette Salgarino, (G.R. No.

164376, July 3, 2006)—

“To our mind, the acts of the respondent in increasing the marks and indicating passing grades on the white sheets of her students while she was on maternity leave; xxx of making the increases in the grades of the students during her maternity leave which is not allowed since the substitute teachers were the ones authorized to compute and give the grades for the concerned students; and of invoking humanitarian consideration in doing so which is not a basis in the Manual of Regulations for Private Schools for grading a student, are all acts of transgression of school rules, regulations and policies;

Truly, then, respondent had committed a misconduct. However, such misconduct is not serious enough to warrant her dismissal from employment under paragraph (a) of Article 282 of the Labor Code.”

iii. Failure to Maintain Confidentiality of School Records

BP 232 provides that the students shall have the right to “x x x the CONFIDENTIALITY of (their school records) which the School shall maintain and preserve.

• Confidentiality covers only STRICTLY confidential records

1) Personal records

2) Academic records/ reports

3) Birth Certificates

4) Adoption papers

5) Medical/guidance reports

6) Disciplinary records

Code of Ethics provides—

“A teacher shall hold inviolate all confidential information concerning associates and the school, and shall not divulge to anyone x x x”

(Article IV, Section 3)

iv. The sale of tickets or the collection of any contribution in any form or for any purpose or project whatsoever, whether voluntary or otherwise, from pupils, students and school personnel, except membership fees of pupils and students in the Red Cross, the Girl Scouts of the Philippines and the Boy Scouts of the Philippines

Sale of Tickets; Collection of Contribution/ Donations from Pupils / Parents

BP 232, Sec. 9 (9) - students have right to be free from (voluntary) involuntary contributions

Improper or unauthorized solicitation of contributions from parents and school children

VIII, 5. A teacher shall not accept, directly or indirectly, any remuneration from tutorials other than what is authorized for such service.

Anita Y. Salvarria vs. Letran College, et al. (296 SCRA 184)

The Supreme Court declared—

“Petitioner contended that her dismissal was arbitrarily xxx, having been effected without just cause, on the premise that the solicitation of funds xxx was initiated by the students and that her participation was merely limited to approving the same. xxx”

If there is one person more knowledgeable of xxx policy against illegal exactions from students, it would be xxx Salavarria.

Hence, regardless of who initiated the collections, the fact that the same was approved or indorsed by petitioner, made her ‘in effect the author of the project.’”

v. Contracting Loans from Students/ Parents

“xxx the Department considers the act of teachers in “xxx contracting loans from parents of their students xxx” not only a serious misconduct based on Art. 282 (a) of the Labor Code, but is likewise a violation of a student’s right “xxx to be free from involuntary contribution xxx” (Sec. 9 (9) of BP 232).”

Usec. Antonio E.B. Nachura

vi. Use of Corporal Punishment

Article 233 of the Family Code strictly provides that “in no case shall the school administrators, teacher xxx exercising special parental authority, inflict corporal punishment upon the child.

viii.Use of Disciplinary Measures (punishment/ penalties) unbecoming of a good parent.

“As parents, the teachers shall use discipline not to punish but to correct, not to force, but to motivate; and not to obey with rigid cadence, but to choose to follow the right way.

Hence, teachers cannot use methods of punishing or such degree of penalties that a good mother or a good father would not likely use on her/his own children.”

ix. Fighting Within Company Premises

In Celia Flores vs. NLRC, where employee was involved in brawl/fighting, Supreme Court said—

“Fighting within company premises is a valid ground for dismissing an employee. At all events it was not necessary to determine who started the fight; what is important is that (the employee) engaged in a fight in the work premises xxx.”

H. Willful Disobedience

The orders, regulations, or instructions of the employer or representative must be:

1. Reasonable and lawful2. Sufficiently known to the employee;

and3. In connection with the duties which the

employee has been engaged to discharge

i. Disobedience to Transfer

ISSUES:

-- It is management’s prerogative to transfer an employee from one office to another within the school system, provided that it does not amount to a demotion in rank or diminution in pay.

-- Only limitation is mala fides. That is, the employer cannot exercise this right is where it is vitiated by improper motive;

-- Employee may disobey an inconvenient transfer.

ii. Refusal to Accept Promotion

- This is not insubordination. No law exists compelling the acceptance of a promotion, since this takes the nature of a gift which a person has the right to refuse.

- A transfer may be refused by the employee if the transfer is coupled with or is in the nature of a promotion.

iii. Refusal to Relinquish Teaching as Required by School Administration

In Cruz vs. Medina, a faculty who rose from the rank to the Deanship, but refused to relinquish her teaching load even after accepting the Dean’s position and required to by Administration the Supreme Court stated--

“x x x Considering the fact that she was holding a managerial position, her refusal to abide by the lawful orders of her employers would lead to the erosion of the trust and confidence reposed on her.”

Q: What is the procedure to be followed to confirm to due process in the dismissal of an employee?

A: Sec. 2, rule XIII, Book V of the Rules Implementing the Labor Code provides:

For termination of employment based on just cause as defined in Art. 282 of the Labor Code:

Due Process Personnel Due Process Personnel DisciplineDiscipline

written notice served on the employee specifying the ground or grounds for termination, and giving to the said employee reasonable opportunity within which to explain his/her side;

A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his/her evidence or rebut the evidence presented against him; and

A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his/her termination.

For termination of employment based on authorized causes, the requirements of due process shall be deemed complied with upon service of written notice to the employee and the appropriate Regional Office of the DOLE at least thirty (30) days before the effectivity of the termination, specifying the ground or grounds for termination.

Q: What is the prescriptive period for an action for reinstatement?

A: An action for reinstatement by reason of illegal dismissal is one based on an injury to the complainant’s rights which should be brought within four (4) years from the time of his/her dismissal; this is pursuant to Art. 1146 pf the Civil Code.

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