Book 6 , Labor Code

TERMINATION

OF EMPLOYMENT

PRESENTED BY:Shirley Poliquit

MBACOG2 M530-8:30

TERMINATION OF EMPLOYMENT BY EMPLOYEE (ART.285)Requisites for termination of employment by employee without just cause:

-In case of termination without just cause, the following requisites must be complied with the employee:1. written notice of the termination;2. service if such notice to the employer at least one(1) month in advance.

- employee may be held liable for damages for failure to give notice.

Termination of employee with just cause-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. inhumane and unbearable treatment accorded the employee by the employer of 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;

4. other causes analogous to any of the foregoing.

Requisites of Serious insult as a ground to terminate employment by employee:-In order to be considered a just cause to warrant the valid termination of employment be the employee without notice, the ff. requisites must concur:o the insult must be serious in charactero It must be committed by the employer or his

representative;o It must injure the honor and person of the employee.

Requisites for serious and inhumane and unbearable treatment as a ground to terminate employment by employee:-This ground may be invoked if the following requisites concur:o the treatment is inhumane and unbearable in nature;oIt is perpetrated by the employer or his representative.

Requisites for commission of the crime as ground to terminate employment by employee-the requisites for these ground are as follows:o a crime of offense is committedo it was committed by the employer or his

representativeo it was perpetrated against the person of the

employee or any of the immediate members of his family.

Analogous causes that may invoked as a ground to terminate employment by employee

Ex. Constructive dismissal or forced resignation

Employment Not Deemed Terminated (Art. 286)a. bona-fide suspension of the operation of a

business/undertaking for a period of not more than 6 months

b. Fulfillment by the employee of a military or civic duty

- Employer shall reinstate the employee to his former position without loss seniority rights IF employee indicates his desire to resume his work not later than one (1) month from resumption of operations of his employer or his relief from the military of civic duty.

Retirement (Art. 287)Definition:

- Retirement has been defined as a withdrawal from office, public station, business, occupation, or public duty.

Art. 287.(Original) “Any employee may be retired upon

reaching the retirement age established in the collective bargaining agreement or other applicable employment contract.

In case of retirement, the employee shall be entitled to receive such retirement benefit as he may have earned under existing laws and any CBA or other agreements”

Art. 287 (amended) “Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. In case of retirement, the employee shall be entitled to receive such retirement benefit as he may have earned under existing laws and any CBA or other agreements…

- Provided, however, that an employee’s retirement benefits under any collective bargaining and other agreements shall not be less than those provided herein.

Art. 287 (amended) “In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six(6) months being considered as one whole years.”

Art. 287 (amended)“Unless the parties provide for broader inclusions, the term “one-half (1/2) month salary” shall mean 15days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than 5 days of service incentive leaves.An underground mining employee upon reaching the age 50 years or more, but not beyond 60 years which is hereby declared the compulsory retirement age for underground mine workers, who was served at least 5 years as underground mine worker, may retire and shall be entitled to all the retirement benefits provided for in this article.

Art. 287 (amended) Retail, service and agricultural establishment or operations employing not more than 10 employees or workers are exempted from the coverage of this provision.

CoverageApplies to private sector employees

- Full time, part time, regular or non-regular.

Retiree must have served the establishment for at least 5 years.Retiree must have reached the age of 60( for optional or 65 (for compulsory retirement)

2 types of Retirement1. Optional retirement

- In the absence of a retirement plan or other applicable agreement providing for retirement benefits of employees in an establishment, an employee may retire upon reaching the age of sixty (60) years or more if he has served for at least five years in said establishment.2. Compulsory retirement

- where there is no such retirement plan or other applicable agreement providing for retirement benefits of employees in an establishment, an employee shall be retired upon reaching the age of sixty-five (65) years.

PAG-IBIG as substitute for Retirement Plan As provided in R.A 7742, a private employer shall

have the option to treat the coverage of the Pag-IBIG Fund as a substitute retirement benefit for the employee concerned within the purview of the Labor Code as amended; provided such option does not in any way contravene an existing collective bargaining agreement or other employment agreement.

Thus, the Pag-IBIG Fund can be considered as a substitute retirement plan f the company for its employees provided that such scheme offers benefits which are more than or at least equal to the benefits under R.A. 7641. If said scheme provides for less than what the employee is entitled to under RA7641, the employer is liable to pay the difference.