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DO 18-A affirms right of contractors employees against unjust dismissal - Baldoz
2011-11-29 + Larger Font | - Smaller Font
Labor and Employment Secretary Rosalinda D. Baldoz yesterday said that the newly-issued Department Order No. 18-A Series of 2011, which provides clear-cut rules and regulations on contracting and subcontracting, affirms the constitutionally-guaranteed rights of employees of contractors or subcontractors to security of tenure and to be protected against dismissal, except for a just and authorized cause.
In a media briefing on D.O. 18-A at the DOLE in Intramuros, Manila, Baldoz said:
“The consensus-based solutions provided under D.O. 18-A on the labor contracting or subcontracting issue, particularly on termination, affirms these rights under the Labor Code of the Philippines,” she said.
Specifically, Baldoz said Section 12 of the order clarifies the standards of due process that must be observed in all cases of termination of employment, based on Article 277(b) of the Labor Code, as amended, and on settled jurisprudence.
“This provision, which the tripartite partners have arrived at for purposes of clarifying the law’s applicability to contracting or subcontracting arrangements, is totally absent in the previous department order,” Baldoz explained.
Under Section 12, termination of employment based on just causes requires two written notices served on the employee, with the first notice containing the following: (1) specific causes or grounds for termination; (2) detailed narration of the facts and circumstances that will serve as basis for the charge against the employee; (3) the company rule, if any, that was violated and/or the ground under Art. 282 of the Labor Code with which the employee is charged; and (4) a directive that the employee is given the opportunity to submit a written explanation within a reasonable period.
On this, the order provides that after the first notice, the contractor or subcontractor should afford the employee ample opportunity to be heard and defend himself with the assistance of a representative, if he so desires, and to submit evidence in support of his defense, whether in a hearing, conference, or some other fair, just, and reasonable way.
The second written notice of termination is required after the contractor or subcontractor has determined that the termination of employment is justified. It must indicate that all circumstances involving the charge has been considered; and that the grounds have been established to justify the termination.
Section 12 of D.O. 18-A also provides that in termination of employment based on authorized causes, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate DOLE regional office of the DOLE at least 30 days before the effectivity of the termination.
“If the termination is brought about by the completion of the contract or a phase thereof, no prior notice is required. If the termination is brought about by the failure of a probationary employee to meet the reasonable standards of the employer, which was made known to the employee at the time of his employment, it shall be sufficient that a written notice is served upon the employee within a reasonable time prior to the expiration of the probationary period,” Section 12 further reads.
Baldoz also said that D.O. 18-A clarifies the effect of termination of employment in contracting or subcontracting arrangements.
In Section 13, it is stipulated that in case the termination of employment is caused by the pre-termination of the service agreement not due to authorized causes, the right of the contractor employee to unpaid wages and other unpaid benefits, including unremitted legal mandatory contributions, such as SSS, PhilHealth, PagIbig, and ECC premiums, shall be borne by the party at fault, without prejudice to the solidary liability of the parties to the service agreement.
Finally, Section 13 declares that “where the termination results from the expiration of the service agreement, or from the completion of the phase of the job, work, or service for which the employee is engaged, the latter may opt for payment of separation benefits as may be provided for by law or the service agreement, without prejudice to the employee’s entitlement to completion bonuses or other emoluments, including retirement benefits, whenever applicable.
Solidary liability is defined under the order as referring to the liability of the principal, pursuant to Article 109 of the Labor Code, as direct employer together with the contractor.”
END /mjlc
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