What legal considerations do firms need to be aware of when letting staff members go during a pandemic? And is a zoom or skype call the best way to break the news?

The Labour Advisory No.1, Series of 2020, of the Department of Labour and Employment (DOLE) states that “employees who fail or refuse to work by reason of imminent danger resulting from natural or man-made calamity shall not be … subject to any administrative sanction”. This was issued on Jan. 13 by the DOLE secretary, before the president declared a six-month national public health emergency on Mar. 16. Twelve days earlier, on Mar. 4, upon realising the far-ranging adverse effects of COVID-19, the DOLE secretary announced through Labour Advisory 9-2020: “The adoption of flexible work arrangements is considered as (a) better alternative(s) than outright termination of the services of the employees or the total closure of the establishments.” On May 16, reiterating the preferred approach of avoiding employment terminations, the DOLE secretary reminded employers about alternative work schemes as remedies to avoid such terminations and closures: employee transfers or reassignments; reduction of workdays; job rotation; partial closure.

The question then is: Can Philippine employers nonetheless resort to employee dismissals if they deem the same to be necessary? Yes, they can, even during the pandemic, as long as there are just or authorised causes for terminating the employment. Just cause refers to fault or negligence of the employee (serious misconduct, gross and habitual neglect of duties, breach of trust, commission of a crime against the employer, or an analogous cause); authorised causes involve a business decision of the employer (as a redundancy declaration, installation of labour-saving devices, retrenchment, cessation of operations) or separation due to affliction with a disease. There are however varying rules applicable to each of these causes. Generally, due process needs to be observed prior to dismissals for a just cause. Prior notices and payment of separation pay are required for authorised cause separations. Employers need not worry for as long as they have substantial evidence of the just or authorised cause and are compliant with the applicable rules.

This article first appeared in “Difficult Conversations”, an article in the Asian Legal Business by Elizabeth Beattle