Primary defense for wrongfully charged workers

I am the operations manager of a small company. For some reason, the chief executive officer (CEO) who is a foreign national wants me to be dismissed. The newly-hired human resource (HR) manager cooperated by concocting allegations. Please advise. — Deep Stroller

The purpose of discipline is both preventive and corrective — to avoid the act or omission by any employee contrary to the ideals of the organization. It should not be a tool for harassing people. Rather, it is a form of control to promote the interests of the organization as well as the employees, in general.

On the corrective side, the punishment should be calibrated to give the worker a second chance, unless it’s about a grave offense. It should serve the organization’s interest and not the interests of any individual. It becomes more of an issue if that person is a foreign national who disregards the basic requirements of our laws.

For example, if an employee is habitually absent, breaks safety rules, or wears an improper uniform or some such minor offense, the primary goal of discipline is not to punish but to prevent the same thing from happening again. The HR department must issue a circular reminding the workers to observe those important rules, no matter how trivial they are to some people.

PROCEDURAL DEFENSE
It’s important to establish the company rules, the reasonableness of the penalty, and all factual circumstances, including the availability of the complainant and their witnesses, if any. If an employee is accused of habitual absenteeism, then his attendance record must be established as having violated policy, which in our jurisdiction takes the form of the Code of Conduct (CoC).

The following procedural steps may be used as a defense by employees who thinks they have been wrongfully charged with imaginary offenses:

One, seek out the bill of particulars. Ask for an incident report summarizing all circumstances surrounding the offense, the particular article of the CoC that is relevant, when it happened, where it happened, and the statements of the complainant and witnesses, if any.

Much better if the report comes in the form of a notarized affidavit to add weight. More important, if there are no complainants or witnesses, then there can be no offense.

Two, ask for a printed copy of the employment contract and the CoC. Some unprincipled employers avoid giving a hard copy of those two documents to workers. This is an unfair labor practice.

Soft copies of those documents do not have the same validity as they are not considered original in the legal context. Besides, the soft copy can be easily tampered with to suit the interests of unprincipled managers.

Three, examine the specific CoC provision that was allegedly violated. You can make the best technical argument by citing those provisions as HR people, even lawyers, can be careless, if not intentional in their wrongful interpretation. For example, simple and gross negligence are two different things, in the same manner, that gross and habitual neglect of duty can result in different interpretations.

Discover the interpretation of the Supreme Court and compare them with the definitions found in the CoC and other documents. You will be surprised.

Fourth, challenge the authority of the official concerned. What is the authority of the HR manager to issue the Notice to Explain (NTE)? It is the general belief that the HR manager has the sole authority to discipline people. Not necessarily, especially if rank is an issue.

Generally, the operations manager and finance manager are higher in rank, pay, and status than the HR manager. Therefore, it would be unreasonable for a low-ranking official to discipline them in this context. If this happens, better if that foreign CEO does the job.

Five, discover the inconsistencies in the application. Explore how similar incidents in the past were resolved. If there were similar violations in the past, what happened to the offenders? How did management resolve the issue? Did the offenders receive any penalty or were they given a reduced sanction?

What’s the difference between your case and other cases? If you’re diligent, you can find reasons that could serve as legal and reasonable grounds for your defense.

Six, emphasize the unreasonable nature of the penalty. Does it conform to industry standards? If not, then why not? For example, an employee charged with habitual tardiness may be dismissed if he proves to be incorrigible. However, that might only happen if the worker has committed six such violations within a certain period.

That means management cannot terminate, say, after three straight violations. Besides, the penalty must be progressive, moving from oral reprimand, written reprimand, and suspension without pay. The last resort is dismissal.

Seven, ask for a labor official to manage a mediation process. Do this only if there are continuing unresolved issues like the refusal of management to give you a copy of the CoC and the employment contract. Ask for help from the Department of Labor and Employment or an external, independent lawyer.

Some lawyers from the Integrated Bar of the Philippines or labor federations can advise you on what to do. The Supreme Court has also approved a resolution requiring lawyers to render at least 60 hours of pro bono legal aid every three years to indigent people.

Bring Rey Elbo’s leadership program called Superior Subordinate Supervision to your organization. Contact him on Facebook, LinkedIn, X, or e-mail elbonomics@gmail.com or via https://reyelbo.com.