Power to suspend the effect of termination

ByPersida Acosta

September 12, 2020

Dear PAO,

Other than the remedy of filing a case for illegal dismissal, do we have an

immediate remedy if our employer terminated us en masse? Our employer

alleges that it is retrenching us due to business losses. But it seems that there

is no basis for doing so.

There are no notices, no proof of losses by the company and no collaboration

with the Department of Labor and Employment (DoLE). Hence, with these

failures, what can we do to regain our work?

Danny

Dear Danny,

The answer to your query is found in the provisions of Presidential Decree

442, otherwise known as the “Labor Code of the Philippines.” Succinctly,

Article 292 (b) of the said law provides the power granted to the secretary of

the Department of Labor and Employment (DoLE) to suspend the effect of

termination of employment, viz:

“Article 292. Miscellaneous provisions.

“(a) xxx

“(b) Subject to the constitutional right of workers to security of tenure and

their right to be protected against dismissal except for a just and authorized

cause and without prejudice to the requirement of notice under Article 283 of

this Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the causes

for termination and shall afford the latter ample opportunity to be heard and

to defend himself with the assistance of his representative if he so desires in

accordance with company rules and regulations promulgated pursuant to

guidelines set by the Department of Labor and Employment. Any decision

taken by the employer shall be without prejudice to the right of the worker to

contest the validity or legality of his dismissal by filing a complaint with the
regional branch of the National Labor Relations Commission. The burden of

proving that the termination was for a valid or authorized cause shall rest on

the employer. The Secretary of the Department of Labor and Employment

may suspend the effects of the termination pending resolution of the dispute

in the event of a prima facie finding by the appropriate official of the

Department of Labor and Employment before whom such dispute is pending

that the termination may cause a serious labor dispute or is in implementation

of a mass lay-off.” (As amended by Section 33, Republic Act 6715, March

21, 1989)

ADVERTISEMENT

Indeed, the law dictates that the DoLE secretary has the power to suspend the

effects of termination of employment even pending the resolution of the

legality or validity of the termination upon the following grounds:

a) The termination may cause a serious labor dispute; and/or

b) The termination is in implementation of a mass layoff.

In the facts that you have mentioned, you stated that the termination made by

your employer was en masse. In this regard, the second ground would be

applicable given the number of workers that were allegedly terminated.

Thus, upon a prima facie determination by the appropriate officials, i.e. the

Labor arbiter, the voluntary arbitrator or the panel of arbitrators, as the case

may be, the Labor secretary may exercise the above-mentioned power

provided by law to order your reinstatement pending the resolution of the

case. In sum, with the peculiarity of your termination comes this much

expeditious extraordinary relief.

We hope that we were able to answer your queries. Please be reminded that

this advice is based solely on the facts you have narrated and our appreciation

of the same. Our opinion may vary when other facts are changed or

elaborated.