Termination due to Excessive Tardiness

Atty.Melki wrote: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.

I do appreciate the advice given, but still i also research. I just feel that reply given is one sided, you shouldn't be proud that you have terminated people because of tardiness alone. Those people have families to support.

Please do comment on the content of this site:

http://www.lawphil.net/judjuris/juri2013/feb2013/gr_172044_2013.html#fnt23

Thanks

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.

Good for you if you are following procedures. i hope you dont mind me asking how many have you lose? But what I am asking for advice is my situation which i sited.you havent ask me how many minutes or hours those lates are. But anyways thanks for the advice.

papabearnisugar


First and foremost, I am not proud that I have terminated them but their termination resulted from their actions despite the fact they were reprimanded several times. Yes they do have a family to feed but it is not the company's fault that they are so hard-headed that's why we just let them go. Im not boasting but I belong to a company who is an open-minded. And also, Im happy your dismissal was not served.

Im sorry if you felt my response is one-sided but if you review my replies from the other post, most of them favored the employee and more of a guidance of what they should do when their rights are deprived.

Since you've ask, I only lost 1 case but it was because that employee disrespected our COO that he made the COO terminate him right then and there. And in fact it can't be considered as lost because we were just penalized for non-compliance of due process since the situation was provoked. It seems unbelievable but for 17 years in my profession, that is really my record.

It was stated in your post that you were give 10 mins grace period. So the fact that you are late despite the grace period, it doesn't matter. Time is gold

Papi, swerte ka pa nga yung iba nabibigla na lang.

I'm also an employee but for me tardiness is a no - no. Ako nga mismo nagagalit sa mga officemates ko lalo na yung madalas ma - late dahil ako sumasapo ng work nila.

Papabearnisugar the case you cited was the case of Cavite Apparel vs Marquez where Supreme held that the penalty of dismissal from employment was too harsh for an infraction due to the fact that the respondent has medical certificate to prove that her sickness was warranted. Also the fact of the case is that Ms Marquez was with the company for 6 years with no deragatory record other than the 4 absences. I want to highlight the fact that she's been with the company for more than 6 years. The NLRC, CA and SC will appreciate those things during trial. This is that decision was in favor of the respondent (Ms Marquez). As with your case I am not pretty sure how long have you been in the company. Yung tardiness is usually look at differently by law as opposed to absences kasi yung absneces there are medical certificates that could attest that this is not habitual and gross on your part. Kasi pwede mong gamitin na defense ay unforseen circumstances na would render you incapacitated to go to work. Sa lates more of will issue and usually look at it as with intent. Let me cite to you a case where chronic tardiness is contrued as habitual and gross, http://sc.judiciary.gov.ph/jurisprudence/2012/august2012/186169.pdf , this the case of Carvajal vs Luzon Development Bank GR No 186169, here the SC decided that chronic tardiness is gross and habitual. The exact of SC thru Justice Perez is "Punctuality is a reasonable standard imposed on every employee,
whether in government or private sector. As a matter of fact, habitual
tardiness is a serious offense that may very well constitute gross or habitual
neglect of duty, a just cause to dismiss a regular employee. Assuming that
petitioner was not apprised of the standards concomitant to her job, it is but
common sense that she must abide by the work hours imposed by the bank."

My advised is you can still seek NLRC for help on your case, Again when in doubt Justice will serve in favor of Labor. That is when the employer and employee is at equal footing. However you should consider your action as well kasi there is a well entrenched doctrine of Law is that " Justice is for the deserving"

[quote="papabearnisugar"]

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? [/quote


Please take note the due process also involved the right of the employee to be informed of charges, the NTE or Notice to Explain should also cover that charges detailing why employee should not be given the sanction and the infraction made by the employee. Under Kings of Kings Transport vs Mamac a general description with not comply with the requirements of law. It should be more exhaustive on the part of the employer. The employer is given wide lattitude in disciplining its employees however dismissal or termination should always be a last resort an employer to make. I don't know siguro kasi galing ako ng PUP College of Law kaya medyo iba ako magisip compare sa ibang panyero dito. Im still in the activism side.

Thanks,

Stashracer,

I don't think you are getting our conversation.

Papabearnisugar is asking if it isn't questionable that he got promoted then terminated so I answered Yes if due process was not followed.

Of course, details of the charges is necessary in the NTE but what I am pointing out is that the employee should be given 5 days allowance to explain his side.

Also, I didn't say an employee do not have the right to oppose the employer's decision, what I said is that it is not stipulated in the labor code whether you can or can't. I just simply told him that questioning your employer's decision is a risk since the management might take it against him. Since if you really wanted to oppose the employer's decision, you have to ask help from you really have to seek for grievance machinery in your union which I believe there is none in his company. Because if there is, he wouldn't be asking help here.

Hi HR Adviser,

Sorry if my quoting was off. The truth is that the

"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? [/quote"

was not mine but the previous post. Also the labor code doesn't specifically mentioned if one can oppose a decision of an employer when it comes to the operation of its business. One can only question if it will be detrimental to his rights. One good example will be a decision that will affect one's salary. The Labor Code may not cover all points in the Labor confilct but IRR and Jurisprudence will answer all vagueness of the law. Let us always remember that there is a presumption in law that Lawmakers intention in creating a law is Justice in mind. Thus if the silence of the law creates injustice on the part of labor then Supreme Court can use statutory construction in construing the law.

We should always keep in mind that in every action we make whether in favor of the employer or labor that under Art 19 of the Civil Code "Every person must, in the exercise of his rights and in the performance of his duties,act with justice, give everyone his due, and observe honesty and good faith." In that way everyone will have no problem.

HR Adviser, you may want to hear my Labor lectures in UP Solair.

Why do I need Labor lectures in UP Solair when I get free lectures from you here?

I really don't know why you cannot get it that I am not implying that employees do not have the right to question the management. I am not a lawyer but doesn't mean I don't know labor law. I know for a fact that if an employee feels that the sanction given to him is unjust, he can contest it through grievance machinery. If still, no comprise is reached in the grievance, Union and Company go to NCMB for voluntary arbitration. If still unresolved, you go to CA then last is SC. And the good thing about having a union is that you get to have your own counsel from the start to guide you.

My point is if your company is not unionize or union is not that active, it is difficult to question management. It's like going straight to President Aquino and tell him "he is an asshole and so are your constituents". Of course you have the option to do that but you have to be prepared for the president's reaction. Of course, you wouldn't expect the president to tell you it is a wonderful comment. I'm just really careful in giving advise to complain directly in management because if the management take it against the employee, most of the time, it is the employee who would take the toll.

HR Adviser wrote:Why do I need Labor lectures in UP Solair when I get free lectures from you here?

I really don't know why you cannot get it that I am not implying that employees do not have the right to question the management. I am not a lawyer but doesn't mean I don't know labor law. I know for a fact that if an employee feels that the sanction given to him is unjust, he can contest it through grievance machinery. If still, no comprise is reached in the grievance, Union and Company go to NCMB for voluntary arbitration. If still unresolved, you go to CA then last is SC. And the good thing about having a union is that you get to have your own counsel from the start to guide you.

My point is if your company is not unionize or union is not that active, it is difficult to question management. It's like going straight to President

Aquino and tell him "he is an asshole and so are your constituents". Of course you have the option to do that but you have to be prepared for the president's reaction. Of course, you wouldn't expect the president to tell you it is a wonderful comment. I'm just really careful in giving advise to complain directly in management because if the management take it against the employee, most of the time, it is the employee who would take the toll.  

Agan Mr/Ms HR Adviser I would like to clarify again. The quote  

" 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? "
 
WAS NOT MINE. It was a quote that was posted from Papabearnisugar when I reported to answer that posted however it was though it seems I was asking a question. Even as lawyers are not super experts in labor code much the law in entirety. However it is elementary rule that Jurisprudence is used in determining the applicability of a particular law. Even if lawmakers (congressmen and senate ) cannot interpret their own  written law it is but the power of the Judiciary to interpret the written law of a lawmaker. So again let me repeat again, I did not state that you were implying that employees have no right to question management. It was a quote that I posted from a previous post. Also to make it straight an individual can and may question a ruling of a company especially if it will be detrimental of the individuals right. If someone needs help if such arises, we at the BPO workers organisation will help those who are aggrieved and will help the less in law. Most of the lawyers here are my fraternity brothers so anyone is open to seek help. To end when we act on this whether management or labor we should always look if

1. if we are acting according to justice in mind.
2. if we are acting in good faith.
3. when we act keep in mind to do it with caution if damages may arise.

Let me quote the case of Sosito vs Aguinaldo Development which the Supreme Court through Justice Isagani Cruz ruled

"to the rule that justice is in every case for the deserving, to be dispensed in the light of the established facts and the applicable law and doctrine. "

The Labor Code itself shall always be at the appraisal of justice, fairness and for the deserving.

attyLLL wrote: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

SIR/ MAM AKO MAN PO CHINARGES NILA NG LATE OPENING OF THE STORE 5,000 LAST 2011 MAY MEMO ANG OPIS ANG PAG KAKA ALAM KO PO WALA PO NAG AGREE SA AMING LAHAT REMAIN SILENCE. WALA PO AKONG ALAM KUNG SA TAKOT KO PONG TANGGALIN SA WORK PINAGAWA NILA AKO NG REQUEST LETTER NA KAHIT 500 EVERY PAYROL DEDUCT SA SALARY KO COMPANY POLICY DAW PO UN, LAST OCT 18 2013 NA LATE PO AKO SA KADAHILANAN PONG TECHNICAL ERROR PO ANG LRT, GUMAWA NAMN PO AKO NG INCEDENT REPORT. TAPOS PO MAY PINAPIPIRMAHAN PONG ATD ULI 1000 NALNG DAW PO DAHIL BINAGO DAW PO UNG AMOUNT. HINDI KO PO PINIRMAHAN KASE PO NAI TANONG KO NARIN PO SA LABOR AT BAWAL DAW PO UN NAG KATAASAN PO KAMI NG BOSES NG HR NAMIN COMPANY RULES N POLICY DAW PO UN ANG SABI PO NG HR NAMIN ANO
"GUSTO MO UNAHAN TYO" KAYA PO NASAGOT KO PO SYA NG SIGE SUBUKAN NYO PONG ICHARGE YAN KAHIT WALA AKONG SIGNATURE NG ACKNOWLEDGEMENT. DUN DUMATING PO ANG PAYSLIP KO PO TINULOY PARIN PO NG HR NAMIN YUNG DEDUCTION TAMA PA PO BA YUN

Hi Please Help Me Po Kasi I Was Absent For 5days Because Mu Husband git Sicked And Was Diagnosed of CAP-lr. I Informed My Tl on The First Day i Was Absent About My situation. Dapat After 4days I Was About To Go To work But Unfortunately My Husband got To Er And i was not Again To Go To My Work And Again i Called Our Sickhotline And Informed Them The Situation. The Next Day Monday I went To Work And Pass The Med Cert And Discharge Slip of My Husband And Resquesting if I can avail LOA. BUT my Tl Said That Hr Did not Approved My Request And Also The Medcert They Did Accept. And Now I Was Facing And RFI,(request For Investigation) And They Want Me To Pass Written Explanation And Hr Has The Final Decision If They Will Terminate Me. For Me They treated Me Unfairly. First Why Did They Not Approved My Loa And imagined That though My Husaband Is Sick They Still Want Me To Go To Work And Imagined Who Will Take Care of My husband. Sa Tingin Po B Nyo Tama Po Ang Ginawa Skin Ng Hr? For This Parang Gusto Ko Silang Ireklamo S Dole.my Laban Po Kaya Ako?

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.

hi hr adviser,

what if the notice is so late, example tadiness incurred last year and this year lang pinag sabay sabay memo, written, verbal, 2 + 5 + 15 day suspension in one go?

ranzu11 wrote:

hi hr adviser,

what if the notice is so late, example tadiness incurred last year and this year lang pinag sabay sabay memo, written, verbal, 2 + 5 + 15 day suspension in one go?

Bawal na yan. Pwede lang yung mga recent - maybe within a few days to weeks.

council wrote:

ranzu11 wrote:

hi hr adviser,

what if the notice is so late, example tadiness incurred last year and this year lang pinag sabay sabay memo, written, verbal, 2 + 5 + 15 day suspension in one go?

Bawal na yan. Pwede lang yung mga recent - maybe within a few days to weeks.

meron po ba tayo sir pwede i-cite na article from the labor code?

AIRfroggy wrote:
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'?

Failure to comply with established working hours IS neglect of duty. 1 minute late means you neglected your duty for 1 minute.

Bear in mind that tardiness is not and never will be acceptable. Some tolerance is only given to make room for unavoidable circumstances but should not be more than once or twice every month. More than that is considered habitual and excessive because you're not supposed to be tardy at all to begin with.

Hi, is explanation letter from a Tardiness memo needed?

Good Day,



What if the lates were from the month of july then the suspension was granted on november. pano po yun? okay lang po ba na ganun na kalate yung suspension? hindi po ba sya mawawaive?



Thanks!

sigmahr2015 wrote:Hi, is explanation letter from a Tardiness memo needed?  

Yes, if it is required by the company.

Tanong ko lang po kelan po nagiging invalid ang pag issue ng NTE? Kasi po ang nangyari sa akin nalate po ako ng april 1 then binigay po sa akin ang nte after 2 weeks. Valid pa rin po ba iyon?
Thank you.

ranzu11 wrote:

hi hr adviser,

what if the notice is so late, example tadiness incurred last year and this year lang pinag sabay sabay memo, written, verbal, 2 + 5 + 15 day suspension in one go?

it depends, the memo might be citing all your tardiness during the past year to imply upon you that you have been habitual in your tardiness. It should be viewed in its totality. For example if the notice mentions you are tardy 6 times during the first of july 2014 and will be suspended for 2 days ... then for me bawal na yan. But if ang ni mention is for the last 12 months you have been late 180 times tapos ni cite yung dates going back to even a year ago, i believe that is still valid

Mrkat wrote:Tanong ko lang po kelan po nagiging invalid ang pag issue ng NTE? Kasi po ang nangyari sa akin nalate po ako ng april 1 then binigay po sa akin ang nte after 2 weeks. Valid pa rin po ba iyon?
Thank you.

NTEs are always valid. Yung disciplinary action against a particular offence ang nag lalapse. So you should always answer a NTE. Now if merong sanctions as a result yan ang pwedeng pagtalunan

Thank you very much Sir.