Constructive dismissal or a constructive discharge has been defined as quitting because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay. (See Philippine Industrial Security Agency Corporation vs. Virgilio Dapiton et al., G.R. No. 127421 December 8, 1999). Constructive dismissal may also occur when there is an act of clear discrimination, insensibility, or disdain by an employer so unbearable on the part of the employee so as to foreclose any choice on his part except to resign from such employment (See Soliman Security Services Inc. et al. vs. The Court of Appeals et al., G.R. 143215 July 11, 2002).
As held in the case of Siemens Philippines Incorporated et al. vs. Enrico Domingo et al., G.R. 150488 July 28, 2008, the gauge for constructive dismissal is whether a reasonable person in the employee's position would feel compelled to give up his employment under the prevailing circumstances. It may exist when the resignation on the part of the employee was involuntary due to the harsh, hostile and unfavorable conditions set by the employer. An employee who is forced to surrender his position through the employer's unfair or unreasonable acts is deemed to have been illegally terminated and such termination is deemed to be involuntary.
The following are instances which constitute constructive dismissal:
1) Diminution of pay is prejudicial to the employee and amounts to constructive dismissal;
2) Where the transfer involves demotion of rank or a diminution of salary and other benefits;
3) Ordering the employee to take a leave and transfer by reason of company financial losses, and upon the employee's return to work, he was not allowed to enter the company premises;
4) Failing to pay wages due;
5) Putting managers into excessively difficult work situations without supporting their decisions.
6) Harassment or humiliation particularly in front of less senior staff;
7) Victimization of the staff member;
8) Unilaterally changing the employee's job content or terms of employment;
9) Significantly changing the employee's job location at short notice;
10) Falsely accusing an employee of misconduct or of not being capable of carrying out their job;
11) Undue demotion or disciplinary procedures;
12) Sabotage of employee's work product either directly or indirectly with repeated interruption, confusing or inaccurate direction, or uncommunicated deadline changes;
13) Vandalizing the employee's workplace, home, or other personal property. Such tactics could range from minor destruction of immaterial items to more severe acts of vandalism.
14) Forced attendance of a social event against the employee's wishes;
15) Forced resignation;
Tuesday, February 1, 2011
The Need to Study Philippine Tourism Laws
In one way or another, there has been a moment that in one part of our lives, we became travelers or tourists. That is why I write this article on the need for studying tourism laws because this will definitely benefit you, in one way or another. Before we proceed, we have to discuss the concept of Tourism Law.
Tourism law may be defined as a body of rules or principles of action which deals with the regulation, authority, relations and obedience among members of a society involved in tourist travel and accommodation. It includes persons traveling from place to place for pleasure (tourist), and business establishments or persons engaged in the occupation of providing various services for tourists.
The Philippines is governed by many statutes, administrative orders, judicial decisions, rules and regulations. It is imperative to take a closer look on these which affect our tourism industry. The growth and development of the tourism industry is imperative in the context of regional and countryside development. It generates employment, trade and business opportunities. It also promotes strong backward and forward linkages with other industries such as transport, real estate and property development-- hotels/resorts, gift shops, restaurants, jewelry, and construction among others.
Consider the following situations where tourism laws should have been very handy, without which our country or the world would have been a better place to live.
TERRORISM. We will not forget what happened during the December 30, 2000 Light Railway terrorist attack, also known as the Rizal Day Attack where many have died and one hundred victims injured. These victims’ only concern was to avail of the enjoyment of traveling from one place to another through the convenience of the Light Railway Transit, one of the fastest transportation vehicle in Metro Manila. Would it have made a difference if the LRT management strictly followed security measures in order to deter such attacks?
Let us not also forget the recent news where a Newman Goldliner air-conditioned bus traveling in Makati City exploded on January 25, 2011, where it was confirmed that 4 people were killed, and 14 others wounded. What do you think should have been the security measures that the bus company would have done to prevent such attack? Which government agency would have been responsible so that the same incident would not happen again or at least be minimized?
THE OIL SPILL IN THE GUIMARAS ISLANDS. The oil tanker M/T Solar I, carrying more than two million liters of bunker fuel, sank on August 11, 2006 at the Guimaras Strait off the coast of the Guimaras and Negros Occidental provinces, causing some 500,000 liters of oil to pour into the strait. Such oil spill has now adversely affected marine sanctuaries and mangrove reserves in three out of five municipalities in Guimaras Island. Feeding and reproduction in these grounds are also hindered and these organisms became susceptible to diseases. Its effects on corals are swollen tissues, excessive production of mucus and tissue degeneration. For marine birds and mammals, such as whales and dolphins, their insulation and buoyancy are affected since their feathers and fur become matted and soaked with oil. Definitely, the oil spill in the Guimaras Islands has made news all over the world, not to mention in the Philippine Tourism industry. Allegations have been made stating that the tanker only had a capacity of 1.2 million, implying the possibility of overloading. Other investigations have claimed that the captain of the ship has no capacity to manage it. Would it have made a difference if tourism laws were taken more seriously in order to prevent such devastating incident?
THE 2007 GLORIETTA EXPLOSION. This occurred in the Glorietta 2 section at Ayala Center in Makati, Metro Manila on October 19 2007. The blast killed eleven and injured at least 126 persons. The most probable cause, according to authorities, was the accumulation of methane gas in the building's septic tanks, as well as other combustible materials in its basement. Authorities, however, are not ruling out the possibility of a terrorist attack and are still investigating the incident to discover the true cause of the explosion. Whether or not it is caused by an accident or terrorist attack, tourism laws also play a vital role in assessing liabilities and responsibilities of the government and the management of Glorietta 2.
Finally, let us look at the devastation that is caused by typhoons and tsunamis. Recently, typhoon “Frank” ravaged the central and southern Philippines leaving 155 people dead, 27 missing and at least 1 billion pesos worth of damaged infrastructure. In addition, the sinking of the MV Princess of the Star made the Philippine Coast Guard and the owners of Sulpicio Lines in a very bad light. Whoever is responsible for the death and injury of the passengers in MV Princess of the Star, you cannot however remove the fact that tourism laws still play a vital part in assessing the responsibilities and liabilities, not only the ship captain and owner of the MV Princess of the Star, but also the proper government agency.
Today, society has evolved wherein business establishments engaged in tourism have been in the food service, hotel service, transportation service, travel and tour operations, events management and even medical tourism, among others, all for the interest of gratification, happiness, amusement, entertainment, safety and security of people traveling from place to place. E-commerce has now been considered a way of necessity to do business in tourism.
All things being considered, it will not be denied that there are now various or even millions of commercial transactions involved in tourism. In addition, numerous regulations are being imposed by the different government agencies in order to promote tourism development for national interest, security and safety. Hence, there is a need to study the different principles and statutes governing tourism development.
So, why is there a need to study tourism laws? These are the four reasons:
First, it protects the rights of travelers and tourism workers. Every Filipino has at least experienced becoming a traveler in one part of his life. It would be worthwhile to take a closer look on the different statutes governing these rights.
Second, to preserve tourism resources where future generations can enjoy. We know that as responsible Filipinos, we can be instrumental in being part of this endeavor of preserving tourism resources such as our infrastructure, natural and human resources, museums, art collections, etc. so that our children, grand children, great grand children, great great grandchildren would be happy and delighted to enjoy them.
Third, to provide better tourism services. I have been working with practitioners, entrepreneurs and businessmen in the tourism industry. And one thing I have observed is that they have this mission of providing excellent service to the Filipino people. I admit, our country is not perfect..... We all have our differences. But at least tourism laws will provide a strong foundation of improving tourism services to enhance our Filipino values and culture.
Lastly, to promote growth of the tourism industry. In this regard, tourism laws will be instrumental in helping our government generate income for our country’s survival and growth so that we can compete in a global economy.
In the long run, once we realize the need for studying tourism laws, tourism activities and infrastructure will be managed well, and customers like us will be very much satisfied.
So, always remember that to be an outstanding tourism professional, you must be a law-abiding citizen and I encourage you to study tourism laws to gain competitive advantage.
Philippine Tourism Laws by Cabulay and Carpio
Tourism law may be defined as a body of rules or principles of action which deals with the regulation, authority, relations and obedience among members of a society involved in tourist travel and accommodation. It includes persons traveling from place to place for pleasure (tourist), and business establishments or persons engaged in the occupation of providing various services for tourists.
The Philippines is governed by many statutes, administrative orders, judicial decisions, rules and regulations. It is imperative to take a closer look on these which affect our tourism industry. The growth and development of the tourism industry is imperative in the context of regional and countryside development. It generates employment, trade and business opportunities. It also promotes strong backward and forward linkages with other industries such as transport, real estate and property development-- hotels/resorts, gift shops, restaurants, jewelry, and construction among others.
Consider the following situations where tourism laws should have been very handy, without which our country or the world would have been a better place to live.
TERRORISM. We will not forget what happened during the December 30, 2000 Light Railway terrorist attack, also known as the Rizal Day Attack where many have died and one hundred victims injured. These victims’ only concern was to avail of the enjoyment of traveling from one place to another through the convenience of the Light Railway Transit, one of the fastest transportation vehicle in Metro Manila. Would it have made a difference if the LRT management strictly followed security measures in order to deter such attacks?
Let us not also forget the recent news where a Newman Goldliner air-conditioned bus traveling in Makati City exploded on January 25, 2011, where it was confirmed that 4 people were killed, and 14 others wounded. What do you think should have been the security measures that the bus company would have done to prevent such attack? Which government agency would have been responsible so that the same incident would not happen again or at least be minimized?
THE OIL SPILL IN THE GUIMARAS ISLANDS. The oil tanker M/T Solar I, carrying more than two million liters of bunker fuel, sank on August 11, 2006 at the Guimaras Strait off the coast of the Guimaras and Negros Occidental provinces, causing some 500,000 liters of oil to pour into the strait. Such oil spill has now adversely affected marine sanctuaries and mangrove reserves in three out of five municipalities in Guimaras Island. Feeding and reproduction in these grounds are also hindered and these organisms became susceptible to diseases. Its effects on corals are swollen tissues, excessive production of mucus and tissue degeneration. For marine birds and mammals, such as whales and dolphins, their insulation and buoyancy are affected since their feathers and fur become matted and soaked with oil. Definitely, the oil spill in the Guimaras Islands has made news all over the world, not to mention in the Philippine Tourism industry. Allegations have been made stating that the tanker only had a capacity of 1.2 million, implying the possibility of overloading. Other investigations have claimed that the captain of the ship has no capacity to manage it. Would it have made a difference if tourism laws were taken more seriously in order to prevent such devastating incident?
THE 2007 GLORIETTA EXPLOSION. This occurred in the Glorietta 2 section at Ayala Center in Makati, Metro Manila on October 19 2007. The blast killed eleven and injured at least 126 persons. The most probable cause, according to authorities, was the accumulation of methane gas in the building's septic tanks, as well as other combustible materials in its basement. Authorities, however, are not ruling out the possibility of a terrorist attack and are still investigating the incident to discover the true cause of the explosion. Whether or not it is caused by an accident or terrorist attack, tourism laws also play a vital role in assessing liabilities and responsibilities of the government and the management of Glorietta 2.
Finally, let us look at the devastation that is caused by typhoons and tsunamis. Recently, typhoon “Frank” ravaged the central and southern Philippines leaving 155 people dead, 27 missing and at least 1 billion pesos worth of damaged infrastructure. In addition, the sinking of the MV Princess of the Star made the Philippine Coast Guard and the owners of Sulpicio Lines in a very bad light. Whoever is responsible for the death and injury of the passengers in MV Princess of the Star, you cannot however remove the fact that tourism laws still play a vital part in assessing the responsibilities and liabilities, not only the ship captain and owner of the MV Princess of the Star, but also the proper government agency.
Today, society has evolved wherein business establishments engaged in tourism have been in the food service, hotel service, transportation service, travel and tour operations, events management and even medical tourism, among others, all for the interest of gratification, happiness, amusement, entertainment, safety and security of people traveling from place to place. E-commerce has now been considered a way of necessity to do business in tourism.
All things being considered, it will not be denied that there are now various or even millions of commercial transactions involved in tourism. In addition, numerous regulations are being imposed by the different government agencies in order to promote tourism development for national interest, security and safety. Hence, there is a need to study the different principles and statutes governing tourism development.
So, why is there a need to study tourism laws? These are the four reasons:
First, it protects the rights of travelers and tourism workers. Every Filipino has at least experienced becoming a traveler in one part of his life. It would be worthwhile to take a closer look on the different statutes governing these rights.
Second, to preserve tourism resources where future generations can enjoy. We know that as responsible Filipinos, we can be instrumental in being part of this endeavor of preserving tourism resources such as our infrastructure, natural and human resources, museums, art collections, etc. so that our children, grand children, great grand children, great great grandchildren would be happy and delighted to enjoy them.
Third, to provide better tourism services. I have been working with practitioners, entrepreneurs and businessmen in the tourism industry. And one thing I have observed is that they have this mission of providing excellent service to the Filipino people. I admit, our country is not perfect..... We all have our differences. But at least tourism laws will provide a strong foundation of improving tourism services to enhance our Filipino values and culture.
Lastly, to promote growth of the tourism industry. In this regard, tourism laws will be instrumental in helping our government generate income for our country’s survival and growth so that we can compete in a global economy.
In the long run, once we realize the need for studying tourism laws, tourism activities and infrastructure will be managed well, and customers like us will be very much satisfied.
So, always remember that to be an outstanding tourism professional, you must be a law-abiding citizen and I encourage you to study tourism laws to gain competitive advantage.
Philippine Tourism Laws by Cabulay and Carpio
Sunday, January 30, 2011
Is there such a thing as Independent Contractors in the Philippines?
There is such a thing as hiring independent contractors in the Philippines.
If you want to hire an independent contractor, make sure that no employer-employee relationship exists between you and your potential employees. In determining the existence of an employer-employee relationship, the following elements must be present: 1) selection and engagement of the employee; 2) payment of wages; 3) power of dismissal; and 4) the power to control the employee's conduct. Of the above, control of employee's conduct is commonly regarded as the most crucial and determinative indicator of the presence or absence of an employer-employee relationship. Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved, but also the manner and means to used in reaching that end.
Providing guidelines on company policies does not necessarily mean that the employer has the power to control employee’s conduct. In this regard, an independent contractorship agreement may still prosper if issuance of company policies are merely done to apprise the contractor of company policies and procedures, as long as the contractor is given the freedom to conduct its own operations. The periodic reports that may be required by the company may only be necessary to update the company of the contractor’s performance and business income.
Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means. The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it.
In other words, in determining whether a person who performs work for another is the latter's employee or an independent contractor, the prevailing test is the "right of control" test.
References:
ENCYCLOPAEDIA BRITANNICA (PHILIPPINES), INC., vs. NLRC, G.R. No. 87098 November 4, 1996.
INSULAR LIFE ASSURANCE COMPANY LTD., vs. NLRC et al., GR No. 84484, November 15, 1989.
COSMOPOLITAN FUNERAL HOMES, INC., vs. NOLI MAALAT and NATIONAL LABOR RELATIONS COMMISSION, G.R. No. 86693 July 2, 1990.
If you want to hire an independent contractor, make sure that no employer-employee relationship exists between you and your potential employees. In determining the existence of an employer-employee relationship, the following elements must be present: 1) selection and engagement of the employee; 2) payment of wages; 3) power of dismissal; and 4) the power to control the employee's conduct. Of the above, control of employee's conduct is commonly regarded as the most crucial and determinative indicator of the presence or absence of an employer-employee relationship. Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved, but also the manner and means to used in reaching that end.
Providing guidelines on company policies does not necessarily mean that the employer has the power to control employee’s conduct. In this regard, an independent contractorship agreement may still prosper if issuance of company policies are merely done to apprise the contractor of company policies and procedures, as long as the contractor is given the freedom to conduct its own operations. The periodic reports that may be required by the company may only be necessary to update the company of the contractor’s performance and business income.
Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means. The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it.
In other words, in determining whether a person who performs work for another is the latter's employee or an independent contractor, the prevailing test is the "right of control" test.
References:
ENCYCLOPAEDIA BRITANNICA (PHILIPPINES), INC., vs. NLRC, G.R. No. 87098 November 4, 1996.
INSULAR LIFE ASSURANCE COMPANY LTD., vs. NLRC et al., GR No. 84484, November 15, 1989.
COSMOPOLITAN FUNERAL HOMES, INC., vs. NOLI MAALAT and NATIONAL LABOR RELATIONS COMMISSION, G.R. No. 86693 July 2, 1990.
Saturday, January 29, 2011
Covering your household helpers under the Philippine Health Insurance Corporation
In preparation of the implementation of Batas Kasambahay Act of 2004 which will soon take effect, it is also a requirement to cover your household helpers under the Philippine Health Insurance Corporation (PhilHealth).
As a household employer, you must require your household helpers to apply for a PHILHEALTH Identification Number (PIN). Once your household helper has obtained his PIN, you can start paying for your household helper's PHILHEALTH quarterly contribution, which is P300 a quarter. Use Form MI-5 (PHILHEALTH Contributions Payment Return) as you pay the quarterly contribution for your household helpers. You may pay at any PHILHEALTH accredited banks such as the Philippine National Bank.
For everyone's information.
As a household employer, you must require your household helpers to apply for a PHILHEALTH Identification Number (PIN). Once your household helper has obtained his PIN, you can start paying for your household helper's PHILHEALTH quarterly contribution, which is P300 a quarter. Use Form MI-5 (PHILHEALTH Contributions Payment Return) as you pay the quarterly contribution for your household helpers. You may pay at any PHILHEALTH accredited banks such as the Philippine National Bank.
For everyone's information.
Sunday, January 23, 2011
SSS Contributions for Household helpers
This article is dedicated to my beloved yaya, Ms. Luzvisminda P. De Borja who took care of me since I was in diapers.
Let me share you this story so that a lot of people may learn from this. I made my yaya covered under the Social Security System (SSS) so that she can have a taste of its benefits. As a household employer, I am the one paying her monthly contributions at the SSS ever since September 1997. Currently, she is now 70 years old and qualified for pension benefits under SSS Law. When my yaya applied for her pension benefits this January 2011, she got dismayed because there were a lot of documents and requirements that must be complied.
I am aware that as a household employer, I am under obligation to pay the monthly contributions of my household employees as this is required by law. What makes it frustrating is that I was not properly coached by the Social Security System on the different documents and schedule of payments that I am supposed to fulfill. With these oversight, I am required to start from scratch, submit the proper documents and pay additional fees for deficiency in payments plus a penalty fee for non-compliance of legal requirements. I do not mind preparing the documents myself or paying the required fees, as long as my yaya would get the pension benefits she deserves. I am writing this in case there are household employers out there who may have a noble intention of covering their household employees under the SSS Law.
This article will serve as a lesson to everyone who will employ household helpers. Under the Batas Kasambahay Act of 2004 which will soon take effect, every household employer shall cover all his household employees under the SSS, with penal provisions of a fine and imprisonment in case of non-compliance.
The first thing a household employer should do is to require his household employee seek an SSS Number at the SSS branch where the household employer resides. Accordingly, a household employee can be covered under SSS Law and shall be entitled to the benefits if the covered household employee is under 60 years of age.
Once the household employee acquires his SSS number, the employer may now start paying the monthly contributions for the benefit of the covered household employee. It must be remembered that the monthly contributions of a household employer to SSS for the benefit of his household employee will depend on the monthly compensation that is payable to the covered employee. Accordingly, the amount of monthly contribution paid by the household employer shall be based on the Schedule of monthly contributions, a copy of which may be obtained from any SSS branch.
The next thing to be done is for the household employer to pay the covered household employee at the SSS or any preferred banks accredited by SSS. Form R-5 (Employer Contribution Form) must be properly filled out by the household employer while paying the SSS monthly contribution.
Finally, a document called Form R-3 (Contribution Collection List) must be filed and submitted by the household employer at the end of every quarter. Such document shall be filed and submitted to the SSS branch where the household employer actually resides.
Those are the basic requirements of making household helpers covered under the Social Security System. I am hoping that with the information I have shared, you will not experience the hardship that I encountered.
Let me share you this story so that a lot of people may learn from this. I made my yaya covered under the Social Security System (SSS) so that she can have a taste of its benefits. As a household employer, I am the one paying her monthly contributions at the SSS ever since September 1997. Currently, she is now 70 years old and qualified for pension benefits under SSS Law. When my yaya applied for her pension benefits this January 2011, she got dismayed because there were a lot of documents and requirements that must be complied.
I am aware that as a household employer, I am under obligation to pay the monthly contributions of my household employees as this is required by law. What makes it frustrating is that I was not properly coached by the Social Security System on the different documents and schedule of payments that I am supposed to fulfill. With these oversight, I am required to start from scratch, submit the proper documents and pay additional fees for deficiency in payments plus a penalty fee for non-compliance of legal requirements. I do not mind preparing the documents myself or paying the required fees, as long as my yaya would get the pension benefits she deserves. I am writing this in case there are household employers out there who may have a noble intention of covering their household employees under the SSS Law.
This article will serve as a lesson to everyone who will employ household helpers. Under the Batas Kasambahay Act of 2004 which will soon take effect, every household employer shall cover all his household employees under the SSS, with penal provisions of a fine and imprisonment in case of non-compliance.
The first thing a household employer should do is to require his household employee seek an SSS Number at the SSS branch where the household employer resides. Accordingly, a household employee can be covered under SSS Law and shall be entitled to the benefits if the covered household employee is under 60 years of age.
Once the household employee acquires his SSS number, the employer may now start paying the monthly contributions for the benefit of the covered household employee. It must be remembered that the monthly contributions of a household employer to SSS for the benefit of his household employee will depend on the monthly compensation that is payable to the covered employee. Accordingly, the amount of monthly contribution paid by the household employer shall be based on the Schedule of monthly contributions, a copy of which may be obtained from any SSS branch.
The next thing to be done is for the household employer to pay the covered household employee at the SSS or any preferred banks accredited by SSS. Form R-5 (Employer Contribution Form) must be properly filled out by the household employer while paying the SSS monthly contribution.
Finally, a document called Form R-3 (Contribution Collection List) must be filed and submitted by the household employer at the end of every quarter. Such document shall be filed and submitted to the SSS branch where the household employer actually resides.
Those are the basic requirements of making household helpers covered under the Social Security System. I am hoping that with the information I have shared, you will not experience the hardship that I encountered.
Thursday, January 13, 2011
Law on Sexual Harassment in the Philippines
What is Sexual Harassment?
Sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is acceptable by the object of said Act. (Sexual Harassment Act, RA 7877)
In a work-related environment, sexual harassment is committed when:
a) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of an individual;
b) Granting an individual favorable compensation, terms, conditions, promotions or privileges, or
c) The refusal to grant sexual favor results in the limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee. (The Seven Secrets of Success in Employee Discipline and Dismissal, by Atty. Josephus B. Jimenez, p.621.).
The duty of the employer of head of the work-related, educational or training environment with respect to the issue of sexual harassment are as follows:
a) To prevent or deter the commission of acts of sexual harassment;
b) To provide procedures for the resolution, settlement or prosecution of acts of sexual harassment.
c) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor. Such rules and regulations shall include guidelines and proper decorum in the workplace and educational or training institutions.
d) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall be composed of at least one (1) representative each from the management, the union (if any), the employees from the supervisory rank, and from the rank and file employees. In case of educational institutions, the committee shall be composed of at least one (1) representative from the administration, the trainors, teachers, instructors, professors, coaches and students or trainees, as the case may be. The employer or educational institution shall disseminate or post a copy of the Sexual Harassment Act for the information of all concerned in the work premises.
Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. Any action arising from the violation of the provisions of the Sexual Harassment Act shall prescribe in three (3) years.
Let it be known that the concept of sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire; it is about power being exercised by a superior officer over his subordinates. The power emanates from the fact that the superior can remove the subordinate from his workplace if the latter would refuse his amorous advances. [YOLANDA FLORALDE, NIDA VELASCO and NORMELITA ALAMBRA vs. COURT OF APPEALS, G.R. No. 123048. August 8, 2000]. Therefore, sexual harassment can be committed by a woman against her male subordinates, or a male against his male subordinates, if power is being exercised and the power emanates from the fact that the superior can remove the subordinate from the workplace if the latter refuses the superior’s amorous advances.
The following have already been ruled by the Supreme Court as acts constituting Sexual Harassment:
a) Touching the hands and shoulder, and caressing the nape of his subordinate employee (Carlos Libres vs. NLRC, May 28, 1999, G.R. No. 123737)
b) A presiding Judge, using his position by demanding and soliciting sexual demands from his subordinate to enter his room daily for a kiss as a condition for the signing of the subordinate’s permanent appointment as a bookbinder in his Court. (Rogelio M. Esteban vs. Sandiganbayan, G.R. Nos. 146646-49, March 11, 2005).
Sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is acceptable by the object of said Act. (Sexual Harassment Act, RA 7877)
In a work-related environment, sexual harassment is committed when:
a) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of an individual;
b) Granting an individual favorable compensation, terms, conditions, promotions or privileges, or
c) The refusal to grant sexual favor results in the limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee. (The Seven Secrets of Success in Employee Discipline and Dismissal, by Atty. Josephus B. Jimenez, p.621.).
The duty of the employer of head of the work-related, educational or training environment with respect to the issue of sexual harassment are as follows:
a) To prevent or deter the commission of acts of sexual harassment;
b) To provide procedures for the resolution, settlement or prosecution of acts of sexual harassment.
c) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor. Such rules and regulations shall include guidelines and proper decorum in the workplace and educational or training institutions.
d) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall be composed of at least one (1) representative each from the management, the union (if any), the employees from the supervisory rank, and from the rank and file employees. In case of educational institutions, the committee shall be composed of at least one (1) representative from the administration, the trainors, teachers, instructors, professors, coaches and students or trainees, as the case may be. The employer or educational institution shall disseminate or post a copy of the Sexual Harassment Act for the information of all concerned in the work premises.
Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. Any action arising from the violation of the provisions of the Sexual Harassment Act shall prescribe in three (3) years.
Let it be known that the concept of sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire; it is about power being exercised by a superior officer over his subordinates. The power emanates from the fact that the superior can remove the subordinate from his workplace if the latter would refuse his amorous advances. [YOLANDA FLORALDE, NIDA VELASCO and NORMELITA ALAMBRA vs. COURT OF APPEALS, G.R. No. 123048. August 8, 2000]. Therefore, sexual harassment can be committed by a woman against her male subordinates, or a male against his male subordinates, if power is being exercised and the power emanates from the fact that the superior can remove the subordinate from the workplace if the latter refuses the superior’s amorous advances.
The following have already been ruled by the Supreme Court as acts constituting Sexual Harassment:
a) Touching the hands and shoulder, and caressing the nape of his subordinate employee (Carlos Libres vs. NLRC, May 28, 1999, G.R. No. 123737)
b) A presiding Judge, using his position by demanding and soliciting sexual demands from his subordinate to enter his room daily for a kiss as a condition for the signing of the subordinate’s permanent appointment as a bookbinder in his Court. (Rogelio M. Esteban vs. Sandiganbayan, G.R. Nos. 146646-49, March 11, 2005).
Serious Misconduct -- grounds for termination from employment
One of the responsibilities of an employee is to observe the proper decorum within the employer’s work premises. He must follow company rules and regulations. Failure to observe company rules and regulations constitutes a ground for suspension or dismissal from employment.
Serious misconduct is one of the grounds for a valid dismissal of an employee. To define, misconduct is an improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. The misconduct must be of such a grave and aggravated character and not merely trivial or unimportant. (Autobus Workers’ Union vs. NLRC, GR. 117453, June 26, 1998).
The elements of a valid dismissal due to serious misconduct are as follows:
a) it must be serious;
b) it must relate to the performance of the employee’s duties; and
c) it must show that the employee has become unfit to continue working for the employer.
The Supreme Court has already ruled on the following acts which constitute serious misconduct, hence:
a) Challenging a superior to a fight. (Luzon Stevedoring Corporation vs. CIR, L-17411, L-18681, and L-18683, December 31, 1965)
b) Use of insulting and offensive language against a superior were not only destructive of the morale of his co-employees and a violation of company rules and regulations, but also constitute gross misconduct which is one of the grounds provided by law to terminate the services of an employee. (Autobus Workers Union vs. NLRC, GR 117453, June 26, 1998)
c) Repeated utterances of obscene, insulting or offensive words against a superior during and within working areas and making false and/or malicious statements against a superior, and violation of company rules and regulations. (Asian Design and Manufacturing Corporation vs. Deputy Minister of Labor, 142 SCRA 79)
d) Falsifying time cards or any other timekeeping records, or drawing salary/allowance by virtue of falsified time cards. (Manuel C. Felix vs. Enertech Systems Industries, Inc. G.R. No. 142007. March 28, 2001)
e) Drinking of alcoholic beverages during working time, performing work while under the influence of liquor, assaulting a supervisor or any official in the work place. (Club Filipino Inc. vs. Sebastian, July 23, 1992, GR No. 85490)
f) Using employer’s property, equipment and personnel in the personal business of the employee. (Zenco Sales, Inc. vs. NLRC, August 2, 1994, G.R. No. 111110).
g) Sexual harassment (Touching a female subordinate’s hand and shoulder, caressing her nape). [Libres vs. NLRC, May 28, 1999, G.R. No. 123737).
Serious misconduct is one of the grounds for a valid dismissal of an employee. To define, misconduct is an improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. The misconduct must be of such a grave and aggravated character and not merely trivial or unimportant. (Autobus Workers’ Union vs. NLRC, GR. 117453, June 26, 1998).
The elements of a valid dismissal due to serious misconduct are as follows:
a) it must be serious;
b) it must relate to the performance of the employee’s duties; and
c) it must show that the employee has become unfit to continue working for the employer.
The Supreme Court has already ruled on the following acts which constitute serious misconduct, hence:
a) Challenging a superior to a fight. (Luzon Stevedoring Corporation vs. CIR, L-17411, L-18681, and L-18683, December 31, 1965)
b) Use of insulting and offensive language against a superior were not only destructive of the morale of his co-employees and a violation of company rules and regulations, but also constitute gross misconduct which is one of the grounds provided by law to terminate the services of an employee. (Autobus Workers Union vs. NLRC, GR 117453, June 26, 1998)
c) Repeated utterances of obscene, insulting or offensive words against a superior during and within working areas and making false and/or malicious statements against a superior, and violation of company rules and regulations. (Asian Design and Manufacturing Corporation vs. Deputy Minister of Labor, 142 SCRA 79)
d) Falsifying time cards or any other timekeeping records, or drawing salary/allowance by virtue of falsified time cards. (Manuel C. Felix vs. Enertech Systems Industries, Inc. G.R. No. 142007. March 28, 2001)
e) Drinking of alcoholic beverages during working time, performing work while under the influence of liquor, assaulting a supervisor or any official in the work place. (Club Filipino Inc. vs. Sebastian, July 23, 1992, GR No. 85490)
f) Using employer’s property, equipment and personnel in the personal business of the employee. (Zenco Sales, Inc. vs. NLRC, August 2, 1994, G.R. No. 111110).
g) Sexual harassment (Touching a female subordinate’s hand and shoulder, caressing her nape). [Libres vs. NLRC, May 28, 1999, G.R. No. 123737).
Subscribe to:
Posts (Atom)