S.A 2020/21 B.E LABOR LAW | Question #14

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SUGGESTED ANSWERS TO THE 2020/21 BAR EXAMINATIONS IN LABOR LAW 




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Upon the owner’s instructions, the restaurant manager served a notice of termination on a cashier who has been employed in that restaurant for more than five years. Effective immediately, the notice was based on the alleged insubordination of the cashier.

The owner had ordered the termination immediately after learning from the manager that the cashier was asking whether the restaurant was remitting Social Security System contributions deducted from employees’ salaries.

Will an action for illegal dismissal filed by the cashier prosper? Explain briefly.


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SUGGESTED ANSWER:


Yes, the action for illegal dismissal will prosper. The dismissal of the cashier was made without complying with substantive and procedural due process and therefore violates the cashier’s right to security of tenure.

There is no substantive due process because his dissociation as a regular employee is not for a just or authorized cause. In particular, making inquiries as to whether the restaurant was remitting SSS premiums does not constitute insubordination because it does not meet the elements of insubordination under Sec. 5.2(b) of the DOLE Department Order No. 147 s. 2015.

Finally, there is no procedural due proces because the employer did not comply with the “twin notice” requirement before dismissing the cashier under Art. 292 of the Labor Code. 


Code: S.A 2020/21 B.E LABOR LAW | Question #14



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