Paternity Leave for Probationary Employees

I haven’t blogged on law for a long time. I’ve been planning to but I just couldn’t get around to doing so. But every now and then a client would ask me an interesting question and it occurred to me that maybe I could hit two birds with one stone: Do research on that question and convert it to a blogpost!

So here’s the question: Can probationary employees avail of paternity leave?

But first, What is paternity leave? Here’s the definition according to Section 3 of Republic Act 8187 (Paternity Leave Act of 1996):

SECTION 3. Definition of Term. – For purposes of this Act,  Paternity Leave refers to the benefits granted to a married  male employee allowing him not to report for work for seven (7) days but continues to earn the compensation therefor, on the  condition that his spouse has delivered a child or suffered a  miscarriage for purposes of enabling him to effectively lend support to his wife in her period of recovery and/or in the  nursing of the newly-born child.

And who may avail of this Paternity Leave? Section 2 of the law gives the answer:

SECTION 2. Notwithstanding any law, rules and regulations to the contrary, every married male employee in the  private and public sectors shall be entitled to a paternity leave  of seven (7) days with full pay for the first four (4) deliveries of  the legitimate spouse with whom he is cohabiting. The male  employee applying for paternity leave shall notify his employer of the pregnancy of his legitimate spouse and the   expected date of such delivery.

For purposes of this Act, delivery shall include childbirth  or any miscarriage.

The law mentions “every married male employee in the private and public sectors”. But does he have to be a regular employee before he can avail of paternity leave? Section 1(b) of the Implementing Rules clarifies the meaning of employee in this provision:

“Employee” refers to any person who performs services for another and receives compensation therefor, provided an employer-employee relationship exists between them.

We are now in a position to answer our original question: Can a probationary employee avail of paternity leave? Yes, because the paternity leave law (as clarified by the Implementing Rules) doesn’t distinguish between regular and probationary employees. Of course, he still has to comply with the conditions provided in the law, but probationary employment status by itself doesn’t disqualify him from availing of paternity leave.

Incidentally, there’s a new law that came out early in 2019 that expanded maternity leave. This new law allows a female worker entitled to maternity leave benefits to allocate up to seven (7) days of said benefits to the child’s father, whether or not the same is married to the female worker. But that’s going to be a blog post for another day.

Security Guards on Floating Status

In the recent case of Exocet Security and Allied Services Corp. and/or Ma. Teresa Marcelo vs. Armando D. Serrano (G.R. No. 198538, September 29, 2014) the Supreme Court clarified some of the rules concerning security guards on floating status. I have taken the liberty of summarising these rules, but I have more or less followed the exact words of the Supreme Court in the decision.

1. The “floating status” or temporary “off-detail” of security guards employed by private security agencies is a form of temporary retrenchment or lay-off. The concept has been defined as that period of time when security guards are in between assignments or when they are made to wait after being relieved from a previous post until they are transferred to a new one. It takes place when the security agency’s clients decide not to renew their contracts with the agency, resulting in a situation where the available posts under its existing contracts are less than the number of guards in its roster. It also happens in instances where contracts for security services stipulate that the client may request the agency for the replacement of the guards assigned to it, even for want of cause, such that the replaced security guard may be placed on temporary “off-detail” if there are no available posts under the agency’s existing contracts.

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Productivity Standards

Can you dismiss an employee on the basis of failure to meet sales or work quotas? The Supreme Court answered this question in the affirmative in ARMANDO ALILING, Petitioner, vs. JOSE B. FELICIANO, MANUEL F. SAN MATEO III, JOSEPH R. LARIOSA, and WIDE WIDE WORLD EXPRESS CORPORATION, Respondents. (G.R. No. 185829; April 25, 2012).

In Lim v. National Labor Relations Commission,35 the Court considered inefficiency as an analogous just cause for termination of employment under Article 282 of the Labor Code:

We cannot but agree with PEPSI that “gross inefficiency” falls within the purview of “other causes analogous to the foregoing,” this constitutes, therefore, just cause to terminate an employee under Article 282 of the Labor Code. One is analogous to another if it is susceptible of comparison with the latter either in general or in some specific detail; or has a close relationship with the latter. “Gross inefficiency” is closely related to “gross neglect,” for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business. In Buiser vs. Leogardo, this Court ruled that failure to observed prescribed standards to inefficiency may constitute just cause for dismissal. (Emphasis supplied.)

It did so anew in Leonardo v. National Labor Relations Commission36 on the following rationale:

An employer is entitled to impose productivity standards for its workers, and in fact, non-compliance may be visited with a penalty even more severe than demotion. Thus,

 [t]he practice of a company in laying off workers because they failed to make the work quota has been recognized in this jurisdiction. (Philippine American Embroideries vs. Embroidery and Garment Workers, 26 SCRA 634, 639). In the case at bar, the petitioners’ failure to meet the sales quota assigned to each of them constitute a just cause of their dismissal, regardless of the permanent or probationary status of their employment. Failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. This management prerogative of requiring standards may be availed of so long as they are exercised in good faith for the advancement of the employer’s interest. (Emphasis supplied.)

 In fine, an employee’s failure to meet sales or work quotas falls under the concept of gross inefficiency, which in turn is analogous to gross neglect of duty that is a just cause for dismissal under Article 282 of the Code. However, in order for the quota imposed to be considered a valid productivity standard and thereby validate a dismissal, management’s prerogative of fixing the quota must be exercised in good faith for the advancement of its interest.

Worth reiterating is the employer’s duty to prove that it exercised its prerogative of fixing the quota in good faith; otherwise, it might not be able to successfully claim that the dismissal was legal.

Termination of Probationary Employment (1)

Chronic Tardiness; Reasonable Standards for Regularization; No Notice and Hearing Required for Termination

Mylene was employed as a trainee-teller by a bank under a six-month probationary employment contract. She was almost always late, so the bank sent her a memorandum directing her to explain why she should not be subjected to disciplinary action for “chronic tardines” (8 times in one month). Another memorandum was sent to her directing her to explain why she should not be suspended for “chronic tardiness” on 13 occasions in one month. In her written explanations to both memoranda, she practically admitted the charges against her. She was suspended for 3 days without pay, but before the 3 days were over the suspension was lifted and her employment was instead terminated. This happened before the six-month probationary period was over. She filed a case for illegal dismissal against the bank.

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Labor Law: Cashiers Beware!

The case EATS-CETERA FOOD SERVICES OUTLET and/or SERAFIN RAMIREZ, versus MYRNA B. LETRAN and MARY GRACE ESPADERO, (G.R. No. 179507, October 2, 2009) involves a cashier whose time card was punched in by someone else. She failed to report this incident to her supervisor, for which reason she was eventually dismissed. One wonders whether such a minor matter could be a just cause for dismissal, but so it is! And the crucial factor here is her position as cashier.

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Labor Law – Loss of Trust and Confidence

The Supreme Court had the opportunity of reiterating some well-known guidelines pertaining to dismissal due to loss of trust and confidence in the very recent case of M+W ZANDER PHILIPPINES, INC. and ROLF WILTSCHEK, versus TRINIDAD M. ENRIQUEZ, (G.R. No. 169173) promulgated just last week, i.e., June 5, 2009. You can read the facts of the case HERE. The central guidelines on loss of confidence as enunciated in this case are as follows:

Article 282 (c) of the Labor Code allows an employer to terminate the services of an employee for loss of trust and confidence. [28]  Certain guidelines must be observed for the employer to terminate an employee for loss of trust and confidence.  We held in General Bank and Trust Company v. Court of Appeals,[29] viz.:
[L]oss of confidence should not be simulated. It should not be used as a subterfuge for causes which are improper, illegal, or unjustified. Loss of confidence may not be arbitrarily asserted in the face of overwhelming evidence to the contrary. It must be genuine, not a mere afterthought to justify earlier action taken in bad faith.[30]
The first requisite for dismissal on the ground of loss of trust and confidence is that the employee concerned must be one holding a position of trust and confidence.
There are two classes of positions of trust: managerial employees and fiduciary rank-and-file employees.
Managerial employees are defined as those vested with the powers or prerogatives to lay down management policies and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions.[31] They refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or a subdivision thereof, and to other officers or members of the managerial staff.[32] Officers and members of the managerial staff perform work directly related to management policies of their employer and customarily and regularly exercise discretion and independent judgment.[33]
The second class or fiduciary rank-and-file employees consist of cashiers, auditors, property custodians, etc., or those who, in the normal exercise of their functions, regularly handle significant amounts of money or property.[34] These employees, though rank-and-file, are routinely charged with the care and custody of the employer’s money or property, and are thus classified as occupying positions of trust and confidence.
The second requisite of terminating an employee for loss of trust and confidence is that there must be an act that would justify the loss of trust and confidence.[38] To be a valid cause for dismissal, the loss of confidence must be based on a willful breach of trust and founded on clearly established facts.[39]

Article 282 (c) of the Labor Code allows an employer to terminate the services of an employee for loss of trust and confidence. Certain guidelines must be observed for the employer to terminate an employee for loss of trust and confidence.  We held in General Bank and Trust Company v. Court of Appeals, viz.:

[L]oss of confidence should not be simulated. It should not be used as a subterfuge for causes which are improper, illegal, or unjustified. Loss of confidence may not be arbitrarily asserted in the face of overwhelming evidence to the contrary. It must be genuine, not a mere afterthought to justify earlier action taken in bad faith.

The first requisite for dismissal on the ground of loss of trust and confidence is that the employee concerned must be one holding a position of trust and confidence.

There are two classes of positions of trust: managerial employees and fiduciary rank-and-file employees.

Managerial employees are defined as those vested with the powers or prerogatives to lay down management policies and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions. They refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or a subdivision thereof, and to other officers or members of the managerial staff. Officers and members of the managerial staff perform work directly related to management policies of their employer and customarily and regularly exercise discretion and independent judgment.

The second class or fiduciary rank-and-file employees consist of cashiers, auditors, property custodians, etc., or those who, in the normal exercise of their functions, regularly handle significant amounts of money or property. These employees, though rank-and-file, are routinely charged with the care and custody of the employer’s money or property, and are thus classified as occupying positions of trust and confidence….

The second requisite of terminating an employee for loss of trust and confidence is that there must be an act that would justify the loss of trust and confidence.  To be a valid cause for dismissal, the loss of confidence must be based on a willful breach of trust and founded on clearly established facts.

The case also includes a discussion of when and when not to grant moral damages in labor cases, and when is a General Manager personally liable for an illegally dismissed employee’s labor claims. You can read the whole thing HERE.

Recent Labor Jurisprudence (RLJ): Hotel Nurses

Although I have posted digests of recent jurisprudence on labor law on this blog before, I think it’s high time I make the whole thing a little bit formal by assigning a category, i.e. Recent Labor Jurisprudence, henceforth RLJ.

Let’s begin with a case decided just this month involving the employment status of nurses engaged by a hotel. Here’s what the Supreme Court has to say in the case of Escasinas, et al. vs. Shangrila’s Mactan Island Resort, et al. (G.R. No. 178827).

Under the foregoing provision, Shangri-la, which employs more than 200 workers, is mandated to “furnish” its employees with the services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic which means that it should provide or make available such medical and allied services to its employees, not necessarily to hire or employ a service provider. As held in Philippine Global Communications vs. De Vera:

x x x while it is true that the provision requires employers to engage the services of medical practitioners in certain establishments depending on the number of their employees, nothing is there in the law which says that medical practitioners so engaged be actually hired as employees,  adding that the law, as written, only requires the employer “to retain”, not employ, a part-time physician who needed to stay in the premises of the non-hazardous workplace for two (2) hours. (Emphasis and underscoring supplied)

The term “full-time” in Art. 157 cannot be construed as referring to the type of employment of the person engaged to provide the services, for Article 157 must not be read alongside Art. 280 in order to vest employer-employee relationship on the employer and the person so engaged. So De Vera teaches:

x x x For, we take it that any agreement may provide that one party shall render services for and in behalf of another, no matter how necessary for the latter’s business, even without being hired as an employee. This set-up is precisely true in the case of an independent contractorship as well as in an agency agreement.  Indeed, Article 280 of the Labor Code, quoted by the appellate court, is not the yardstick for determining the existence of an employment relationship. As it is, the provision merely distinguishes between two (2) kinds of employees, i.e., regular and casual. x x x (Emphasis and underscoring supplied)

The phrase “services of a full-time registered nurse” should thus be taken to refer to the kind of services that the nurse will render in the company’s premises and to its employees, not the manner of his engagement.

You can read the whole thing HERE.