Dear Attorney,
I was recently separated from my company after failing one of the final assessments for my initial account. However, I was informed earlier that there would be a reprofiling process, and I passed both the assessment and interview for another campaign. Despite this, the HR department did not approve my transfer and subjected me to non-regularization. I am concerned whether this constitutes illegal termination, given the circumstances of the reprofiling. Could this be considered an unjust dismissal?
Insights
In the Philippines, an employee's dismissal must follow the legal standards set under the Labor Code to avoid being classified as illegal. Non-regularization after probationary employment is one aspect where illegal dismissal can arise if the employer fails to meet specific legal requirements.
Probationary Employment and Security of Tenure
Probationary employees are covered under the same security of tenure as regular employees during their period of probation. Employers have the right to terminate probationary employees if they fail to meet the reasonable standards set at the beginning of their engagement. However, these standards must be clearly communicated at the time of hiring.
Grounds for Termination
In cases where an employee is not regularized, the employer must base its decision on valid grounds. These reasons usually include failure to meet job performance standards or breach of company policies. If an employee fails to pass assessments or other evaluations directly related to job performance, it may be a legitimate basis for non-regularization. However, if there is a discrepancy in how the termination process was handled—such as conflicting instructions about reprofiling—this may raise issues about procedural fairness.
Reprofiling and Reassignment
Reprofiling is a process where employees are reassigned to another role, typically after an assessment. In the Philippines, such reassignment or transfer of employees is allowed, as long as it is done in good faith and does not result in a reduction of salary or a substantial change in working conditions. If the reassignment is part of the agreed process, and the employee passes the necessary assessments, failure to implement the reprofiling without valid cause could be viewed as an arbitrary decision by the employer.
Procedural and Substantive Due Process
Illegal termination is often questioned when either procedural or substantive due process is not observed. Procedural due process involves notifying the employee of the reasons for termination and providing the opportunity to respond. Substantive due process, on the other hand, requires that the dismissal be based on valid, legal reasons. If an employer promises reassignment but fails to proceed without just cause, this could be a potential violation of due process, and the termination might be deemed illegal.
Illegal Dismissal and Remedies
If an employee believes they were unjustly terminated, they may file a complaint with the Department of Labor and Employment (DOLE) or the National Labor Relations Commission (NLRC). The employee may be entitled to reinstatement, back wages, or other monetary compensation, depending on the outcome of the case. It is crucial to assess whether the employer had just cause and followed the proper procedures before deciding to separate the employee from the company.