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Archive for September, 2018

Termination By Employer

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Whether you are an employer or employee, when it comes to termination of employment it’s important to know your rights and obligations under the law. Let’s take a close look.

 

The right to security of tenure of an employee is granted under the 1987 Philippine Constitution and the Labor Code of the Philippines (both of which you can find in the Resources section on our Homepage). An employer cannot terminate an employee except for what are termed ‘Just Causes’ or ‘Authorized Causes’.

Article 297 of the Labor Code of the Philippines enumerates the Just Causes for terminating an employee as follows:

  1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

  2. Gross and habitual neglect by the employee of his duties;

  3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

  4. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

  5. Other causes analogous to the foregoing.

Article 298 of the Labor Code of the Philippines, meanwhile, enumerates the Authorized Causes for terminating an employee as follows:

  1. Installation of labor-saving devices;

  2. Redundancy;

  3. Retrenchment to prevent losses; and

  4. Closure or cessation of operation of the establishment.

An employer may also terminate an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees pursuant to Article 299 of the Labor Code of the Philippines.

Before terminating an employee, the employer must observe procedural due process. This varies depending on whether an employee is being terminated on the ground of just causes or on the ground of authorized causes.

The case of Unilever Philippines Inc. vs. Maria Ruby Rivera, G.R. No. 201701, 03 June 2013, provides the procedural due process to be observed before termination of an employee based on a just cause thus:

  1. First written notice to the employee containing the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint.

  1. A hearing or conference during which the employee concerned, with the assistance of counsel if employee so desires, is given opportunity to respond to the charge, present his evidence or rebut evidence presented against him or her; and

  1. A written notice of termination served on the employee indicating upon due consideration of all circumstance, grounds has been established to justify his or her termination.

However, it must be noted that a hearing or conference is not mandatory so long as the employee has been given ample opportunity to be heard.  In the case of Felix B. Perez vs. Philippine Telegraph and Telephone Company, G.R. No. 152048, 07 April 2009, the Court held that, “A hearing means that a party should be given a chance to adduce his evidence to support his side of the case and that the evidence should be taken into account in the adjudication of the controversy. “To be heard” does not mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations, submissions or pleadings. Therefore, while the phrase “ample opportunity to be heard” may in fact include an actual hearing, it is not limited to a formal hearing only. In other words, the existence of an actual, formal “trial-type” hearing, although preferred, is not absolutely necessary to satisfy the employee’s right to be heard.”

The procedural due process of terminating an employee based on authorized cause is provided in Article 298 of the Labor Code of the Philippines, to wit:

  1. Written Notice to the employee at least one (1) month before the intended date of termination; and

  2. Written Notice to the Department of Labor and Employment at least one (1) month before the intended date of termination;

An employee’s termination would be considered illegal if the employer did not observe the afore-stated due process.

I hope this information has been useful. Don’t forget, if you have a labor-related problem, we are here to help.

And we find solutions.

Atty. Cindy Climaco.  Sept. 12, 2018

LINK :  Labor Code of the Philippines


‘APPOINTING A DATA PROTECTION OFFICER.’ The first of Atty. Matthew Mortega’s articles on the Data Privacy Act of 2012.

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We live in a time when personal information can be freely transferred from one entity to another without any authorization whatsoever, causing consternation among many who use online services, particularly social media. Thus, in 2012, Republic Act No. 10173 or The Data Privacy Act of 2012 was passed, the purpose of which is “to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth.” (Sec. 2). This Act protects an individual’s personal data in information and communication systems in both the government and private sector.

In order to guide the public for compliance of the said provision, the National Privacy Commission (“NPC”), created five pillars of compliance and accountability to assist entities that are covered by the DPA. The first pillar is the appointment of Data Protection Officers.

 

Why Appoint a Data Protection Officer?

A Data Protection Officer (“DPO”), is a person assigned by the organization to ensure that the personal and sensitive information of the data subjects is protected and secured. As such, DPOs will be accountable for ensuring compliance by the Personal Information Controllers or Personal Information Processors with the DPA, its Implementing Rules and Regulations, related issuances of the NPC, and other applicable laws and regulations in relation to data privacy and security.

 

What are the General Qualifications to be a DPO?

The law does not expressly state the qualifications required to be a DPO; however for a smoother compliance, a DPO should possess specialized knowledge and demonstrate the reliability necessary for the performance of his or her duties and responsibilities. As such, they should have expertise in relevant privacy or data protection policies and practices. Likewise, they should have sufficient understanding of the processing operations being carried out by the controllers or processors.

 

Duties and Responsibilities of the DPO.

A DPO, among other things, shall monitor whether the collection of personal information or data subjects is in accordance with the DPA. For this purpose, he/she may:

  1. Monitor the controller, or processor’s compliance with the DPA, its IRR, issuances by the NPC and other applicable laws and policies. As such, they may:

  • Collect information to identify the processing, operations, activities, measures, projects, programs, or systems of the Personal Information Controllers PIC) or Personal Information Processors (PIP), and maintain record thereof;

  • Analyze and check the compliance of processing activities, including the issuance of security clearances and compliance by the third-party service providers;

  • Inform, advise, and issue recommendations to the PIC, or PIP;

  • Ascertain renewal of accreditations or certifications necessary to maintain the required standards on personal data processing; and

  • Advise the Personal Information Controllers or Personal Information Processors as regards the necessity of executing a Data Sharing Agreement with third parties, and ensure its compliance with the law;

  1. Ensure the conduct of Privacy Impact Assessments relative to activities, measures, projects, programs, or systems of the controllers, or processors;

  2. Advise the controller, or processors regarding complaints and/or the exercise by data subjects of their rights such as request for information, clarifications, rectifications or deletion of personal data;

  3. Ensure proper data breach and security incident management by the controllers or processors, including the latter’s preparation and submission to the NPC of reports and other documentation concerning security incidents or data breaches within prescribed period;

  4. Inform and cultivate awareness on privacy and data protection within the organization of the controller or processor, including all relevant laws, rules and regulations and issuances of the NPC;

  5. Advocate for development, review and/or revision of policies, guidelines, projects and or programs of the controllers, or processors, relating to privacy and data protection;

  6. Serve as the contract person of the controller, or processors vis-à-vis data subjects, the NPC and other authorities in all matters concerning data privacy or security issues;

  7. Perform other duties and tasks for the further interest of data privacy and security and uphold the rights of the data subjects.

Conclusion:

In sum, the first step to compliance is appointing a qualified Data Protection Officer for the furtherance of protection and security of all kinds of information of its data subjects, whether personal or sensitive. The primary function of a DPO is to protect and secure all private information; any DPO failing to do so shall be accountable before the National Privacy Commission.

The second pillar of compliance is Assessment of Risk: Conducting a Privacy Impact Assessment, which I’ll discuss in the next article.

Atty. Matthew Mortega. Sept. 12, 2018.

LINK :  RA10173 – The Data Privacy Act of 2012.


MFBR at the Summits!

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It’s been a busy time recently for MFBR. Attorney Matthew Mortega represented us at the Data Privacy Summit last August 24, 2018 in Fort Bonifacio and has authored a fascinating article on that very subject which we will be adding to our blog very soon. Meanwhile, our Blockchain and Cryptocurrency specialist, Attorney Stephanie Tible, attended the Blockchain Summit in Singapore last August 28, 2018, along with our IT Associate, Strauss Santos.

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