Termination due to Excessive Tardiness

Hi All,

We have been recently asked to sign a memorandum/document stating that 5 consecutive tardiness for the same cut-off period is grounds for termination. Is this constitutional?

Being a consistent tardy employee I pointed out that tardiness is not included as grounds for termination under the Philippine Labor Code. I got slapped with a document stating that Book 6 Article 282 Section A covers this implicitly.

//QUOTE//
Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
//UNQUOTE//

Is this true?

habitual tardiness can be grounds for termination.. with due process ofcourse.

AIRfroggy wrote:Hi All,

We have been recently asked to sign a memorandum/document stating that 5 consecutive tardiness for the same cut-off period is grounds for termination. Is this constitutional?

Being a consistent tardy employee I pointed out that tardiness is not included as grounds for termination under the Philippine Labor Code. I got slapped with a document stating that Book 6 Article 282 Section A covers this implicitly.

//QUOTE//
Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
//UNQUOTE//

Is this true?

That Article and Section is correctly interpreted.

Please do not challenge your superiors or HR without enough basis otherwise baka mas maipit ka.

If you dispute something, show proof of it first. A "negative" challenge (saying it is not included) can easily be met with proper documentation.

Thanks peeps.

Offside, I was under the assumption that grounds for termination are (1) grave offense, (2) threat and (3) redundancy of work. I'm cross checking references to uncover if there are any precedent to this, will answer if I come across any.

In the meantime, I'm working on measures to ensure punctuality.

Below are the valid grounds:

Causes for Termination by the Employer
1. Serious misconduct;
2. Willful disobedience of employer's lawful orders connected with work;
3. Gross and habitual neglect of duty;
4. Fraud or breach of trust;
5. Commission of a crime or offense against the employer, employer's family or representative; and
6. Other analogous causes.

Habitual tardiness falls on #3.

Patok wrote:
Habitual tardiness falls on #3.

But under the premise of excessive tardiness, this can be debunked. Or on the absence of proper procedure or method to differentiate excessive from habitual, agree?

In addition, aren't there loopholes that maybe exercised as 'neglect of duty' is not the same as 'habitual tardiness'?

usually kasi pag habitual tardiness.. may mga memo yan.. and multiple memos reminding you.. the supreme court has issued rulings that termination is valid on the ground of willful disobedience by the employee of the warning and memoranda issued by company.

it is also further ruled that habitual absenteeism and tardiness constitute gross and habitual neglect of duty. Repeated acts of absences without leave and frequent tardiness reflect indifferent attitude to and lack of motivation in his work.

see http://www.lawphil.net/judjuris/juri2004/jul2004/gr_146621_2004.html

Patok wrote:usually kasi pag habitual tardiness.. may mga memo yan.. and multiple memos reminding you.. the supreme court has issued rulings that termination is valid on the ground of willful disobedience by the employee of the warning and memoranda issued by company.

Fantastic document. The case is premised on 'habitual tardiness and absenteeism' if one can find a way to disprove the habitual connotation and show that circumstances for the tardiness is unique then the case will fall. Curioser and curioser.

AIRfroggy wrote:

Patok wrote:usually kasi pag habitual tardiness.. may mga memo yan.. and multiple memos reminding you.. the supreme court has issued rulings that termination is valid on the ground of willful disobedience by the employee of the warning and memoranda issued by company.

Fantastic document. The case is premised on 'habitual tardiness and absenteeism' if one can find a way to disprove the habitual connotation and show that circumstances for the tardiness is unique then the case will fall. Curioser and curioser.

So how many times have you been late in the last 1-2 months? How many minutes late on each instance?

unique circumstances? traffic does not count. everyday family emergencies dont count in the long run.

council wrote:

So how many times have you been late in the last 1-2 months? How many minutes late on each instance?

unique circumstances? traffic does not count. everyday family emergencies dont count in the long run.

Within their predefined limits. If a case based on perception can hold its ground then objectivity is not the rule of law.

Our companay is considering imposing monetary penalty (salary deduction) for tardiness. However, I'm worried that our staff might bring up the following--

They are required to report for work 40 hours a week. But because of the nature of our business more hours are given--meaning they work overtime. There is no OT pay but we provide OT food and transpo allowance. Also, we have the 12-hour rule which means if an employee leaves, for example, at 10pm, then he can report to work by 10am (official time is 9am).

But despite this, and even during non-OT days, employees still come in late. We are a lean team of 6. We cannot afford tardiness. We have reminded and warned, especially the notorious employees, regarding this.

So my question is-- does it say anywhere in the Labor Code that penalizing an employee for tardiness is not legal?

Thanks!

what the Labor Code states is that deductions are not allowed unless they are authorized by the employee.

my position is that what can be deducted is only for the period that was late under the now work no pay principle. imo, policies that consider 1 hour as deduction for half day are unlawful

hi,

I have an inquiry regarding dismissal/termination. The company i am working right now have a policy of grace period of 10mins (5times only). I was given a memo for 3days suspension because of my consecutive late from Jan- MArch. It was given to me last april. Since i was hired in this company memo is given only for formality sake. Last June I was given a memo with note as preventive suspension, it covers my lates from April 2013. It is compose of 9days suspension. Since we are not practicing availing it i was surprise my manager gave a schedule for me to serve my suspension. I heard awhile ago that memo for lates of May will be given and i think i will be dismissed. My question is, Is it valid that they are giving us the warning already late? should i be given to us every cut-off?

Likewise they are deducting from our salary the lates we incurr, and now they penalize us by suspending us. no work no pay. I feel it is double deduction in our part.

Papabearnisugar,



You are lucky your HR takes quite sometime to process your Notices.

Please check your Policy Manual if you have exceeded your allowable tardiness. If you have exceeded then there's a possibility of termination but HR must follow due process.

Regarding deduction, if you have a union, you may seek help from your union president.
If not, you may send a letter of Request to DOLE and have them reviewed your company policy.

HR Adviser wrote:Papabearnisugar,



You are lucky your HR takes quite sometime to process your Notices.

Please check your Policy Manual if you have exceeded your allowable tardiness. If you have exceeded then there's a possibility of termination but HR must follow due process.

Regarding deduction, if you have a union, you may seek help from your union president.
If not, you may send a letter of Request to DOLE and have them reviewed your company policy.

it is sad on our part employees that they are abruptly and strictly imposing policies with regards to tardiness. it was surprising for us. Just last week they've release a memo regarding my dismissal. I believe that giving it on a 2months late basis didn't give the employee a chance. And considering 8:01 or 8:04 late subject for my dismissal. I am now writing a resignation letter instead, because my manager haven"t given me the memo. I feel bad that its the only basis for them to terminate me. I've worked hard even got a score of 93% on my appraisal sheet. And its funny that my boyfriend was promoted as "supervisor" and after a week was also given notice of dismissal. Isn't that questionable?

yes if Due process was not followed.

Due process is simply this:
Incident report
NTE- should be 5 days
Admin Hearing
Penalty (Should commensurate to the offense)

HR Adviser wrote:yes if Due process was not followed.

Due process is simply this:
Incident report
NTE- should be 5 days
Admin Hearing
Penalty (Should commensurate to the offense)

So you are saying that according to labor law, the employee has no right to oppose the decision of the employer though the said matter didn't affect his/her work?

It is not clearly stated in the labor code that an employee can oppose the decision of the employer. You may oppose but it is really a RISK. To question the management is not a good idea since punctuality is also part of the employee's evaluation and if you know you have violated it repeatedly, it can be a ground for termination. Habitual tardiness can fall under art 282 (a)

ART. 282. Termination by employer. – An employer may terminate an employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) 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

(e) 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. – (a) 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.

(b) 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.

==================================================================================

As provided for by the amended Implementing Rules and Regulations:

In all cases of termination of employment, the following standards of due process shall be substantially observed:

For termination of employment based on just cases as defined in Article 282 of the Labor Code:

(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.

(ii) A hearing or conference during which the employee concerned, with the assistance of counsel, if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.

(iii) 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 termination.

For termination of employment as defined in Article 283 of the Labor Code, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least thirty days before effectivity of the termination, specifying the ground or grounds for termination.

If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination.

HR Adviser wrote:Papabearnisugar,



You are lucky your HR takes quite sometime to process your Notices.

Please check your Policy Manual if you have exceeded your allowable tardiness. If you have exceeded then there's a possibility of termination but HR must follow due process.

Regarding deduction, if you have a union, you may seek help from your union president.
If not, you may send a letter of Request to DOLE and have them reviewed your company policy.

I called NLRC, they told me that if the Memo is not issued within 24 hours from the end of the violation the memo issued is null and void.

papabearnisugar


I am not really sure of who were you able to talk to at the NLRC but it is really impossible to have a ruling that memo is void if not served within 24 hours.

1. I maintain a close ties with NLRC and DOLE. Making sure attending almost every seminar, training and forum they invited me to join. And no such ruling was discussed nor introduced

2. I have represented my company for a number of NLRC cases. I have won 95% of my cases. And I serve my memo even after 24 hours

3. It would be an absurd ruling if such rule existed for a lot of instances that memo can't be serve within 24 hours
*For example, in pilferage cases, most often it would be only discovered after audit. That means that the offense may have been done days, weeks, or months ago
*In our company, my restday falls on Saturday and Sunday. So for offense done on Saturday would be considered null and void since I don't have a work on Sunday.
*our tardiness is accounted every 15 days, only then could we serve NTE for tardiness. So far Dole has been ok with that.

HR Adviser wrote:It is not clearly stated in the labor code that an employee can oppose the decision of the employer. You may oppose but it is really a RISK. To question the management is not a good idea since punctuality is also part of the employee's evaluation and if you know you have violated it repeatedly, it can be a ground for termination. Habitual tardiness can fall under art 282 (a)

ART. 282. Termination by employer. – An employer may terminate an employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) 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

(e) 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. – (a) 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.

(b) 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.

==================================================================================

As provided for by the amended Implementing Rules and Regulations:

In all cases of termination of employment, the following standards of due process shall be substantially observed:

For termination of employment based on just cases as defined in Article 282 of the Labor Code:

(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.

(ii) A hearing or conference during which the employee concerned, with the assistance of counsel, if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.

(iii) 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 termination.

For termination of employment as defined in Article 283 of the Labor Code, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least thirty days before effectivity of the termination, specifying the ground or grounds for termination.

If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination.

Our situation falls under Article 282 no. 2 which is GROSS and HABITUAL. A case in Supreme Court state that for an employee to be dismissed from her duty should have incurred "BOTH" gross and habitual. If the case is only Habitual then there is no merit to the sanction given. Ms. HR Adviser i hope this also helps you in understanding the juris prudence of Law.

papabearnisugar


For the record, I won 3 labor cases in relation to tardiness. I terminated them due to excessive tardiness. And the NLRC (and even in DOLE because I also handle SENA with similar case) sided with me because
1. I followed due process (to mention, all my NTE are served beyond 24 hours since our tabulation for tardiness is done every 15days)

2. It is considered "Gross" and "Habitual". "Habitual" since they repeatedly committed tardiness despite the warning and that I have made and that is is considered "Gross" because the company is still paying these employees even if they are not working (since they are late). That means that the company is at lost if they continue to pay employees who are constantly tardy.

It would be a stupid idea if tardiness is non-terminable because if that is the case then employees would just come in late.

Anyways, Mr. papabearnisugar, I joined this forum to help employees. I believed that there are really employers who are abusive but I also know for a fact that there are stubborn employees who doesn't want to be reprimanded of their wrong doings. If your notion for an HR is someone who harass and terminate employees, don't worry, I'm not like that. I made sure that my employee rights are exercise but also, the interest of the company is prioritize.

A memo or NTE may be issued and remain valid even after 24 hours. Tardiness may also be considered under Art. 282 par. A or b, depending on the totality of circumstances.

Magpasalamat po tayo sa mga nagbibigay ng libreng advice.

HR Adviser wrote:papabearnisugar


For the record, I won 3 labor cases in relation to tardiness. I terminated them due to excessive tardiness. And the NLRC (and even in DOLE because I also handle SENA with similar case) sided with me because
1. I followed due process (to mention, all my NTE are served beyond 24 hours since our tabulation for tardiness is done every 15days)

2. It is considered "Gross" and "Habitual". "Habitual" since they repeatedly committed tardiness despite the warning and that I have made and that is is considered "Gross" because the company is still paying these employees even if they are not working (since they are late). That means that the company is at lost if they continue to pay employees who are constantly tardy.

It would be a stupid idea if tardiness is non-terminable because if that is the case then employees would just come in late.

Anyways, Mr. papabearnisugar, I joined this forum to help employees. I believed that there are really employers who are abusive but I also know for a fact that there are stubborn employees who doesn't want to be reprimanded of their wrong doings. If your notion for an HR is someone who harass and terminate employees, don't worry, I'm not like that. I made sure that my employee rights are exercise but also, the interest of the company is prioritize.

I have consulted my own situation here not the ones you have in your company. Dont be proud you have terminated a lot of employees who has families to support. I dont see HR as people who harrass and terminate employees. I do acknowledge my lapses, yes I'm a tardy employee, but as what i told you our lates are being deducted from our salaries (the company hasn't incurr any loses). I do overtimes even without pay. Yes, companies do have their policies but maybe, just maybe put a lot of things in consideration also.But I'm thankful that there are open minded employers who dont just sited to the HR but see the big picture. The dismissal was not serve and I was given a raise from my salary. And was told that they see me as potential Manager someday.