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How to fire your problem
employee and avoid litigation?
By Alexander Llanes Acain, Jr.
Illegal dismissal is a growing
litigation area in Labor Law that employers need to be aware of every time
they terminate an employee. Many employers are reduced to penury out of a
wrongful act of dismissal.
The first step in avoiding litigation is to have
company policies or Rules and Regulations developed to address the most
common employee work performance and discipline concerns, then have each
employee read and sign that they received these policies - usually done
upon engagement of the employee. The policies should outline the company’s
discipline process and outline what behaviors that an employee can be
terminated immediately for, such as, theft, sexual harassment, and
endangering other employees. Then coach your supervisors in using your
company’s policies in connection with terminating employees. Most
companies will have one verbal warning, one written warning, and then
termination after the next incident. The company should develop forms for
both the verbal and written warnings that supervisors can use. (If your
company is unionized, there may be other steps involved in the termination
process- usually outlined under the grievance procedure provisions in the
Collective Bargaining Agreement)
Document any written warnings that are given to the employee. During
the written warning, be specific about their work performance concern and
concentrate about what you expect to see as improvement. For example, “Helen,
today is the third day in a row that you have been 30 minutes late to
work. All employees are expected to be on time to work and I will be
monitoring your future arrival times for the next four weeks. If further
tardiness occurs, I will have to move on to the next disciplinary step.”
Observe extreme caution in terminating employees on
minor offenses such as tardiness, absence without official leave and other
similar violations because recent decisions of the Supreme Court tend
to favor the property rights of the employees rather than the disciplinary
rules of employers. We therefore suggest that employers use lesser modes
of penalties that are incorporated under your company rules and
regulations for violators other than the supreme penalty of dismissal
such as suspension without pay.
Once you have determined that discipline is in
order, set up a meeting with the employee right away. Write a "show cause
letter" immediately requiring the employee to explain in writing usually
within 24 hours from receipt of the letter especially if the violation
involves serious offenses such as pilferage. For example, "Jay,
please explain in writing within twenty-four (24) hours from receipt of
this letter in the matter of your involvement in the pilferage of company
properties. In the meantime, you are required to attend the formal investigation on
March 28, 2003 at 2:00 PM at the President's Office."
Keep the investigation private and away from
eavesdropping co-workers and office gossip.
If possible, request the assistance of your
retained counsel to personally conduct the investigation. With his trial
skills, the lawyer may ask the employee regarding his
participation or non-participation of the charges, who will then recommend
the proper penalties corresponding to the violation. Write down the
minutes of the investigation and have the employee and all personnel who
attended the investigation sign the minutes.
After the investigation, if evidence of guilt is
strong, suspend the employee immediately for a maximum period of
30 days without pay on the ground that his presence in the company poses a
threat to the properties of the company. Be sure to come up with a
Decision terminating the employee or or before the 30 day period,
otherwise you will pay his salary after the lapse of the thirty (30) day
period.
Be sure to notify the employee of your decision to
terminate him either personally or by registered mail at his last known
address. Just causes for termination falls under Articles 282 of the Labor
Code. Serious violation of company rules and regulations are also just
causes for terminating an employee. If the employee refused to personally
received the Notice of Termination, you can make an annotation "REFUSED TO
RECEIVE" at the back of the letter. Proceed to send a copy of the letter
of termination at the last known address of the employee.
Atty. Alexander Llanes Acain, Jr. is
giving labor consultancy to his clients and has been conducting employee
investigations for the past five (5) years in companies such as Toyota
Pasong Tamo, Toyota Shaw and Ortigas and El Cielito Inn Chain of Hotels
using the aforementioned method which are proven effective in avoiding
labor litigation.
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