P29 PRELIM NOTES

Employee Relations
Atty. HARVE B. ABELLA, Esq.

Definitions
• Employee Relations:
• The relationship between employer and employees in a non-
unionized organization.
• Labor Relations:
• Employee-Employer Relations in a unionized Organization

DEFINITIONS
"Employer" includes any person acting in the interest of an
employer, directly or indirectly. The term shall not include any
labor organization or any of its officers or agents except when
acting as employer.
"Employee" includes any person in the employ of a particular
employer. The term shall not be limited to the employees of a
particular employer, unless the Code so explicitly states. It shall
include any individual whose work has ceased as a result of or in
connection with any current labor dispute or because of any
unfair labor practice if he has not obtained any other
substantially equivalent and regular employment.

DEFINITIONS
• "Managerial Employee" is one who is vested with powers or
prerogatives to lay down and execute management policies
and/or to hire, transfer, suspend, layoff, recall, discharge,
assign or discipline employees.
• Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if
the exercise of such authority is not merely routinary or
clerical in nature but require the use of independent
judgment. All employees not falling within any of the above
definitions are considered rank-and-file employees for
purposes of the labor code;

Models of
Labor/Employee
Relations

PERFECT MODEL
MANAGEMENT
&
LABOR

Perfect Model
• Total congruence of employer’s & worker’s interest & goals.
• NO CONFLICT.
• Unitarian perspective where the organization is perceived as an
integrated and harmonious whole with the ideal of “one happy
family.
• Management and other members of the staff share a common
purpose, emphasizing mutual cooperation
• Paternalistic approach
• Demands loyalty to all employees, being predominantly
managerial in its emphasis & applications.
• Trade unions are deemed unnecessary since the loyalty
between the employees & org. are considered mutually
exclusive.
• Idealistic & IMPRACTICAL

POLARIZED MODEL
MANAGEMENT LABOR

Polarized Model
• Exact opposite of the PERFECT MODEL
• Interests of labor & management are diametrically opposed to
each other
• MARXIST APPROACH

COOPERATIVE MODEL
MANAGEMENT
LABORCommonality of
Interest

Cooperative Model
• Conflictual interests but congruence of interest in common
areas like profitability and survival of the organization
• PLURALISTIC PERSPECTIVE
• The org. is perceived as being made up of powerful and
divergent subgroups each with its own legitimate loyalties and
with their own set of objectives and leaders.
• The role of management would lean less towards enforcing
and controlling and more toward persuasion and coordination.
• Trade unions are deemed as legitimate representatives of the
employees;
• Conflict is dealt with by collective bargaining

CO-OPTIVE MODEL
MANAGEMENT LABOR

Co-optive Model
• The interests of workers are subservient to management
interests.
• Almost similar to the Perfect Model
• In perfect model, there is NO UNION
• In Co-optive model, it is allowed to exist but it more of a
“company union” where it signs a “sweetheart” contract with
the management just for show with no substantial
concessions.

OBSERVATIONS
• Consistent with our democratic system, the COOPERATIVE
MODEL is the one adopted by mainstream Trade Unions with
employers.
• Marxist approach is miniscule and insignificant.

EMPLOYEERELATIONS:
Commonconceptsin unionized& non-
unionizedorgs.
Atty. Harve B. Abella, Esq.

• What is documentation?
• Any record that is kept regarding an employee's performance
or conduct – both positive and negative. Documentation may
consist of copies of actual work products, written statements
by or about employees, or your notes of meetings with
employees. The record you keep when investigating alleged
misconduct is also considered documentation.

• What should be documented?
• You should document BOTH the positive and negative issues
that come to your attention:

SUMMARY
• DOCUMENTATION IS USED FOR:
• Showing Patterns Career Development
• Performance Evaluations
• Probationary Determinations
• Corrective Actions
• Disciplinary Actions
• Positive Feedback and Acknowledgement

SUMMARY
• DOCUMENTATION SHOULD:
• 1. Be a clear record of employee performance/conduct and/or
a clear record of discussions regarding employee
performance/conduct.
• 2. Be factual and objective.
• 3. Be timely (close to the date of the event being
documented).
• 4. Be dated and signed/initialed by the supervisor/manager.
• 5. Be kept in the supervisor's file / HR file and consulted in the
areas listed above.

SUMMARY
• DOCUMENTATION SHOULD NOT:
• 1. Be personal or subjective judgements or opinions.
• 2. Be too informal or anecdotal (it may be used by others in
conduct or performance cases), be too old (documentation
should normally not be more than one year old).
• 3. Be used unless it has been shared with the employee.

What is to be included in a 201
File?
THREE main categories of employment
life cycle:
1. the hiring process
2. the employment period
3. the separation process.

Standard inclusions in a 201
File
• Employee information sheet/Employee application form*
• Employment contracts
• Comprehensive resume or curriculum vitae*
• Official transcript of records*
• Certificates from previous employers*
• Result of pre-employment examinations/Results of the hiring
process*
• Birth certificate*

Standard Inclusions in a 201
File
• Marriage contract*
• SSS Registrations/E1 Form*
• SSS Loan Voucher*
• HDMF Registrations/Online*
• HDMF Loan Voucher*
• PHIC Registrations/PMRF*
• BIR Registration form (Those without TIN)/ BIR form 1902*
• BIR update of taxpayer’s information (Those with previous
employer)/BIR form 2305*
• BIR form 2316 from previous employer (If employee was
employed within the calendar year prior to date hired)*

File
• BIR change of home RDO (if home RDO is different from that
of the company)/BIR form 1905*
• Birth certificates of qualified dependents*
• Other credentials (ATM Payroll Accounts,
acknowledgements)*
• Employee attendance sheet attached by DTRs*
• Ledger of leave credits (Vacation and Sick Leaves)
• Change of departments
• Employment evaluations*

File
• Written reprimands/Incident reports*
• Notice of promotions/Increase in salary rates*
• Withholding tax certificates (BIR Form 2316)*
• Resignation letter/Termination letter
• Clearance form
• Acknowledgement of receipt of quitclaim, withholding tax
certificates, etc)
• Other related documents

REVIEW ON THE
KINDS OF
EMPLOYMENT

DIFFERENT KINDS OF
EMPLOYMENT UNDER THE LCP
• REGULAR EMPLOYMENT
• CASUAL EMPLOYMENT
• PROBATIONARY EMPLOYMENT
• PROJECT EMPLOYMENT
• SEASONAL EMPLOYMENT
• FIXED-TERM EMPLOYMENT

Regular Employment
• Regular employment is one where, notwithstanding any written
or oral agreement between the employer and employee to the
contrary:
• EE has been engaged to perform activities which are NECESSARY
& DESIRABLE in the usual business or trade of the ER. (Art. 280,
LCP)
• EE has rendered at least ONE (1) YEAR of service, whether such
service is continuous or broken, with respect to the activity in
which he is employed and his employment shall continue while
such activity exists (Art. 280, LCP)
• The employee is allowed to work after a probationary period.
(Art. 281, LCP)
TEST OF REGULARITY: reasonable connection between the
particular activity performed by the employee in relation to the
usual business of the employer

Casual Employment
• EE is engaged to perform activities which are not necessary or
desirable in the usual trade or business of the ER
• Work is merely incidental to the business of the ER and such
work or service is for a definite period made known to the
employee at the time of the engagement. (Art. 280, LCP)
• A CASUAL EMPLOYEE MAY BECOME A REGULAR EMPLOYEE
AFTER ONE YEAR OF SERVICE. (Conti vs NLRC, 271 SCRA 114)
• 1 year= whether continuous or broken, with respect to the activity in
which his employment shall continue while such activity exists.
• PURPOSE: to give meaning to the constitutional guarantees of
security of tenure and right to self-organization (Mercado vs
NLRC, Sept 5 1991)

Project Employment
• The employment of an employee has been fixed for a specific
project or undertaking, the completion or termination of
which has been determined at the time of the engagement of
the EE (Art. 280, LCP)
• Where the employment of project employees is extended
long after the supposed project has been finished, the
employees are removed from the scope of project employees
and are considered regular employees

P.E. requirements
• DO No. 19, S 1997
1. Specific project phase thereof stated in the employment
contract
2. Estimated date of completion of project or phase thereof
likewise stated in the contract
3. Employee must have been dismissed every after completion
of his project (gaps must be shown in his length of service)
4. There must be a report to the DOLE of his dismissal on
account of completion of contract

SEASONAL EMPLOYMENT
• Seasonal employment is one where the work or service to be
performed by the employee is seasonal in nature and
employment is for the duration of the season (Art. 280, LCP)
• A seasonal employee may become regular after one year of
service. Once he attains such regularity, he is properly to be
called “Regular Seasonal Employee) – Abasolo vs NLRC, GR No.
118475
• During off season, the relationship of the EE and ER is not
severed, the seasonal employee is merely considered on leave
of absence without pay.
• Seasonal workers who are repeatedly engaged from season to
season performing the same tasks are deemed to have acquired
regular employment

Fixed-term (contract
employees/contractual)
Employment• ALSO KNOWN AS TEMPORARY EMPLOYMENT
• EE is engaged to work on a specific project or undertaking which
is usually necessary or desirable in the usual business or trade of
the employer. The completion of which has been determined at
the time of the engagement of the employee
• The employment of an employee is covered by a fixed contract
of employment
• Employment that will last for a definite period, as agreed by the
parties
• Criteria
• Fixed period was knowingly and voluntarily agreed by the parties
• Parties dealt with each other on more or less equal terms

Probationary Employment
• Probationary employment is one where the employee is on trial
by employer during which the employer determines the
qualifications of the employee for regular employment
• GEN RULE: the probationary period should not exceed 6
months (6 months consists of 180 days – Mitsubishi Motors vs
Chrysler Phils. Labor Union, June 29, 2004)
• Standards should be made known to the employee at the start of
the engagement otherwise, EE is deemed a regular employee
from day one
• If no stipulation on probationary period, employment is deemed
regular
• An EE who is allowed to work after probationary period is
considered a regular employee

(cont)
• Exceptions to the period requirement:
• Apprenticeship agreement
• When the parties to an employment agreement agree
otherwise
• When the same is established by company policy
• When the same is required by the nature of work to be
performed

(cont)
•DOUBLE OR SUCCESSIVE PROBATION NOT
ALLOWED
•The evil sought to be prevented is to
discourage scheming Ers from using the
system of double or successive probation to
circumvent the mandate of the law on
regularization and make it easier for them to
dismiss their employees (Holiday Inn Manila
vs NLRC, September 14, 1993)

TERMINATION OF PROBATIONARY
EMPLOYMENT
• PROBATIONARY EE are protected by the security of tenure
provision of the constitution. However, a probationary
employee may be terminated at any time before the
expiration of the probationary period on two (2) grounds:
• 1. JUST CAUSE
• 2. FAILURE TO MEET THE STANDARDS FOR QUALIFICATIONS
OF REGULAR EMPLOYMENT
• Nb: probationary ee is entitled to procedural due process

• The purpose of the probationary period is to allow the
employer to make a determination regarding the employee’s
ability to perform at a satisfactory level and to conform to
acceptable norms of conduct. It is important to provide
employees who are in their probationary period with training,
guidance and counseling to assist them in reaching and
maintaining a successful level of performance. It is also
important to closely monitor the performance and conduct of
probationary employees so that a determination can be made
regarding conversion to permanent status.

• What are your responsibilities during a probationary period?
• You are responsible for communicating performance and
conduct standards and expectations to the employee,
monitoring their performance and conduct against those
standards and providing timely feedback. In addition to ongoing
oral and written feedback, the probationary employee should
receive a performance evaluation. This is a formal, written
evaluation based on the duties as described in the employee’s
classification description, or in other instructions provided to
the employee (i.e. departmental procedures, quantity/quality
standards, etc.). An employee who is serving a six month
probationary period would receive one evaluation after three
months of service, and one as she/he approaches six months.

definitions
• CONTRACTING / SUBCONTRACTING – an arrangement
whereby a principal agrees to put out or farm out with a
contractor the performance or completion of a specific job,
work or service within a definite or predetermined period,
regardless of whether such job, work or service is to be
performed or completed within or outside the premises of the
principal

definitions
• CONTRACTOR – any person or entity, including a cooperative,
engaged in LEGITIMATE contracting/subcontracting
arrangement either services, skilled workers, temporary
workers, or a combination of services to a principal under a
Service Agreement

DEFINITIONS
• PRINCIPAL - refers to any employer, whether a person or
entity, including GOCC's, who/which puts out or farms out a
job, service or work to a contractor

LEGITIMATE LABOR
CONTRACTING
Contracting arrangement in Labor is Expressly allowed by
Law. (Art. 106)
The court has taken judicial notice of the general practices
adopted in several government and private institutions &
industries of hiring independent contractors to perform
special services. These services range from janitorial, security
and even technical or other specific services. (Neri “radio
operator” vs NLRC, FEBTC &Building Care Corp., 224 SCRA
217)

TRI-LATERAL RELATIONSHIP
THE
PRINCIPAL
THE
CONTRACTOR
CONTRACTUAL
EES

Legitimate Labor Contracting
• Conditions precedent
• The principal must have a written contract for a specific job,
work or service with the contractor
• Contractor must have a written contract with its contractual
employees
• Contractor must be registered/listed with the DOLE
• Contractor must have substantial capital or investment which
relates to the job, work or service to be performed
• Refers to the capital stocks and subscribed capitalization (corporations)
• Tools, equipment, implements, machineries and work premises, actually
and directly used by the contractor in the performance of the job
contracted out

PERFORMANCE VS CONDUCT
• Employee expectations fall into two categories - Performance
and Conduct.
• PERFORMANCE expectations relate to the employee’s job
classification or job assignment and include the quantity,
quality, accuracy and timeliness of work products.
• CONDUCT expectations are work rules that relate to employee
behavior. Examples include adhering to work hours, proper
use and reporting of time, honesty, and interactions with
clients and co-workers, to name a few.

• What is the difference between performance and conduct?
• In general, performance relates to the quantity, quality,
accuracy and timeliness of work products.
• Conduct issues relate to compliance with work rules.
Performance problems usually involve a “can’t do” issue while
conduct problems generally involve a “won’t do” issue.
• Conversely, if an employee is frequently late or absent (won’t
do), it is usually not because he/she lacks the training, ability or
experience to report to work. Counseling and corrective action,
rather than training is usually appropriate.

• Why do we make a distinction between performance and
conduct?
• Conduct and performance are handled differently in terms of
the corrective action process.

CORRECTIVE ACTION &
DISCIPLINARY ACTION
• Corrective action and disciplinary action are two terms that
you will encounter in dealing with performance and conduct
issues. Although corrective action may lead to discipline,
they are not the same.
• What is corrective action?
• Corrective action is the process the supervisor begins when an
employee's performance or conduct is first identified as
needing improvement. Normally, the first step in corrective
action is bringing the issue to the employee's attention
(counseling), and suggesting ways to "correct" the problem

• The intent of corrective action is to assist employees in
correcting their performance and/or conduct to meet
expectations.
• Corrective action includes verbal counseling, written
counseling memos, corrective action plans, letters of warning,
leave restriction letters, and letters of reprimand.
• For Performance problems, performance evaluations may
also be considered corrective action.

• What is disciplinary action?
• Disciplinary action is taken when corrective action has not
caused the employee to correct his/her performance to an
acceptable level. Disciplinary action may be taken without
prior corrective action when an employee’s performance or
conduct is so egregious or serious that informal corrective
action is not an appropriate response.
• Disciplinary action includes suspensions, temporary reductions
in step, demotions, dismissals and disciplinary letters that
equate to a suspension ("non-punitive discipline").

• What is non-punitive discipline?
• Non-punitive discipline is a program that replaces unpaid
suspensions with a disciplinary letter that equates to a
suspension, thereby establishing that there has been previous
discipline if misconduct occurs again. Positive aspects of non-
punitive discipline from management's perspective are that the
employee does not actually leave the workplace, thereby
avoiding the disruption to workflow and cost to fill in behind
the employee. Positive aspects from the employee's
perspective are that no money is lost, and the "rehabilitation
plan" which, if successfully completed, results in removal of the
disciplinary letter within a specific period of time.

• Consistent attention to the employee's performance allows
positive reinforcement of desired work habits and early
identification and correction of bad work habits and
performance problems.

What is the supervisor's /HR’s
responsibility regarding
employee
performance?
• First, clearly communicate your expectations. These
expectations may include written performance standards for
the position as well as specific objectives for the individual
employee.
• You may also want to give the employee their job
specification, any department specific job description which
has been developed, departmental handbooks, etc.

Following this initial discussion,
your responsibilities are to:
• Discuss specific objectives, due dates, timeliness, and quality
and quantity standards in one-on-one conversations and in
group meetings with employees, and confirm specific
objectives in writing prior to the beginning of each review
period.
• Meet with individual employees regularly to discuss their
progress, both positive and negative.
• Counsel when minor performance concerns come to your
attention.
• Prepare written evaluations every three months for
probationary employees, and on an annual basis for all other
employees.

What are performance
expectations?
• Performance expectations are the standards for the position
and the objectives for the individual employee.
• Expectations often have two aspects:
• 1) the quantity or timeliness of work products, and
• 2) the quality or accuracy of those products.

What should be done if an
employee is not meeting
performance
expectations?
• Formally counsel the employee, giving specific examples of
where he/she is not meeting the performance standard(s).
• Refer to any previous informal counseling sessions that were
held and ask the employee if he/she understands the area of
concern. It is usually a good idea to have the employee state
back to you what the problem is and what you expect so there
is no confusion.

• Document the results of the counseling session to writing, and
share this memo with the employee.
• The counseling memo should clearly outline your concerns,
the employee’s response (if any), what the employee has to
do to improve, and the steps you will take to assist her or him.
• Meet with the employee on a regularly scheduled basis, giving
specific assignments and deadlines and providing feedback on
his/her progress. Document these meetings in writing and
give the employee a copy.

• If the employee does not improve, complete a formal
performance evaluation

How does the supervisor know
what to do next, and when to do
it?• In performance cases, there are two options - demotion or
dismissal.
• If an employee has the skills and abilities to do a less complex
job, demotion is the preferred option, especially if the
employee has previously held a lower classification, unless the
current level of performance indicates an inability to perform
even the simplest portions of the current position.
• If the employee's deficiencies demonstrate that demotion is
not a viable alternative, the choice would be dismissal.

• SAMPLE FLOWCHART FOR PERFORMANCE EVALUATIONS
AND CORRECTIVE ACTIONS (not for probationary employees)

• Conduct cases are those where an employee fails to comply
with work rules, policies, and procedures such as arriving for
work on time; treating clients and co-workers with courtesy
and respect; being honest; maintaining a good attendance
record; following procedures for requesting time off; using
company time, supplies and property in a responsible manner;
and other similar behavior-related areas.
• Violations of these work rules, policies and procedures can
form the basis for corrective, and ultimately disciplinary
action, including dismissal.

What is the HRD’s / supervisor's
responsibility
regarding employee conduct?
• First, you must clearly communicate your expectations.
• Every employee must have a copy of the Company Code of
Conduct / Rules Regulation / Company Policies
• Supervisors are also responsible for monitoring employees’
conduct and for providing honest and timely feedback when
an employee fails to meet expectations.

What should be done if an employee
does not adhere to conduct expectations?
• The first step is to conduct an investigation. If you have
personally observed the misconduct (e.g. an employee arrives
late for work), the investigation may consist of a simple
interview of the employee to get his/her side of the story.
• When minor misconduct occurs for the first time (e.g. an
employee is late arriving for work), and the interview of the
employee does not indicate mitigating or extenuating
circumstances which would excuse the offense, verbal
counseling is usually sufficient.

How does the supervisor / HR know
what to do next, and when to do it?
• Following the concept of Progressive Discipline, you will take the
lowest level of corrective/disciplinary action that will be likely to
correct the problem. In determining the level of action to take, you
will look at the following factors:
• 1) The seriousness of the offense and the relationship to the
employees duties
• 2) The employees position and level of responsibility (i.e.,
supervisory etc)
• 3) The employee's past disciplinary record
• 4) The employee's past work record and years of service
• 5) The effect of the offense on the supervisor's confidence in the
employee
• 6) The consistency of the penalty with that imposed on other
employees
• 7) The clarity with which the employee was placed on notice
• 8) The potential for rehabilitation
• 9) Any mitigating circumstances (provocation by others, etc.)

What is progressive
discipline?
• One of those factors is whether the level of discipline that was
taken was appropriate under the circumstances. In making this
determination, the arbitrator expects to see that any serious
discipline was preceded by lesser discipline to place the
employee on notice that the conduct is unacceptable and that
more severe discipline may result if the conduct is not
corrected.
• This does not mean that every infraction must go through
every step of the corrective action process.
• Some forms of misconduct, such as theft, may warrant
dismissal on the first offense.

NON-PUNITIVE DISCIPLINE
PROGRAM DESCRIPTION
• When an employee's conduct warrants corrective action, the
supervisor/manager takes the lowest level of disciplinary action
which:
• 1) is appropriate to the severity of the employee's offense; and
• 2) is likely to result in the employee not repeating the misconduct.
• Under a traditional discipline program, minor misconduct (e.g., initial
instances of tardiness or absenteeism) is normally dealt with through
counseling confirmed in writing. Should the misconduct be repeated,
the normal progression is a letter of reprimand followed by a
suspension. Further misconduct may result in a second suspension,
demotion, or dismissal. Misconduct of a more serious nature may
result in suspension, demotion, or dismissal on the first offense.

• The Non-Punitive Discipline Program follows the same steps as
a traditional program with one exception – unpaid
suspensions are replaced by disciplinary letters that equate to
a suspension of a specified number of days.

Objectives of a Non-Punitive
Discipline Program
• The overall goal of the Non-Punitive Discipline Program is to
improve productivity in the workplace by:
• • Correcting conduct problems promptly, rationally and
constructively
• • Alleviating the financial impact of discipline on employees'
families
• • Affording employees the ability to be rehabilitated and to
clear their records
• • Taking corrective action which is just, equitable and
sustainable

HOW A NON-PUNITIVE
DISCIPLINE PROGRAM WORKS
• A Non-Punitive Discipline Program is designed to help correct
conduct and attendance problems by serving as a step in
progressive discipline.
• Normally, a Non-Punitive Discipline Program will not be used
to correct performance problems (quantity/quality of work).
• Performance problems are dealt with through counseling,
corrective action plans with performance-specific objectives
and outcomes, and performance evaluations.

• Investigation - When an incident of misconduct or an
attendance problem has been investigated and reasonable
proof has been found, the department makes a determination
regarding the appropriate level of discipline. If it is determined
that the infraction does not warrant demotion or dismissal,
but does warrant more than counseling or a letter of
reprimand, the non-punitive discipline program will be used.

• Intent Letter - A Skelly letter of intent is issued to the
employee stating that it is the intent of the department to
issue a disciplinary letter equating to a suspension of X days.
• This letter takes the same form as the usual Skelly letter but,
instead of proposing a suspension, proposes a disciplinary
letter equating to a suspension.

• Oral/Written Response - The normal Skelly process is followed, with
the employee having the opportunity to make an oral and/or written
response to the charges in the intent letter.
• a. If the employee presents information which causes the
department head to determine that the disciplinary letter is not
warranted, the case will be closed with a letter of reprimand, a
warning letter, or a letter clearing the employee of the charges, as
appropriate.
• b. If the department head determines that the disciplinary letter is
warranted, he/she will issue a decision letter, imposing the
disciplinary letter in lieu of a suspension. The decision letter itself
constitutes the disciplinary letter and a separate disciplinary letter is
not issued.

• The management official hearing the oral response
determines, based on the employee's response and by asking
questions, whether the employee acknowledges that the
misconduct for which he/she is being disciplined was
improper, and whether it is the employee's intent not to
repeat the misconduct.

REHAB OR NO REHAB?
• 1. If the employee acknowledges that his/her misconduct was
improper, and indicates the intent not to repeat the misconduct, a
rehabilitation plan is developed.
• This plan will list actions the employee will take and/or training the
employee will attend to ensure that the misconduct does not recur.
• The plan will also set a timeframe during which misconduct must
not recur.
• Once the actions laid out in the rehabilitation plan are completed
and the agreed upon timeframe has elapsed without further
misconduct, the disciplinary letter will be removed from the
employee's personnel files. At this point, the matter will be closed
and the employee will be considered fully rehabilitated.

• 2. If the employee does not acknowledge that his/her
misconduct was improper, and/or does not indicate the intent
not to repeat the misconduct, no rehabilitation plan will be
developed, and the letter will remain in the employee's
personnel files.

• Next meeting: CONDUCTING EMPLOYEE INVESTIGATIONS.

CONDUCTING
EMPLOYEE
INVESTIGATIONS

Source of Allegations of EE
misconduct
• You will not personally witness every act of misconduct
alleged to have been committed by your employees.
Allegations of employee misconduct can come from a variety
of sources.
• MOST COMMON SOURCES:
• CO-WORKERS (superiors, subordinates, etc)
• CUSTOMERS/CLIENTS

What is your role in the area of EE
investigations?
• You are responsible for recording the allegation in as factual
and complete a manner as possible, asking the source of the
allegation such questions as:
• 1. What occurred?
• 2. When did it happen (time/date)?
• 3. Were there any other witnesses to the event?
• 4. Any other details pertinent to the complainant’s
observation of the event.
• When the investigation is the result of an allegation, try to get
written statement from the reporting party.

Shouldtheemployeeberemovedfromthework
areaduringtheinvestigation?
• In some circumstances, it may be appropriate for the accused
employee to be away from the work location during the
investigation. In determining whether to leave the accused
employee in the work area, assign them to work at home, or
to assign them to another location/set of duties, the following
should be considered:
• • Could the accused hinder the investigation by corrupting
data or removing/destroying other evidence?
• • Could the accused cause further harm if left in their current
position?
• • Is the accused a potential danger to others?

Preventive Suspension
• The right of employer to impose preventive suspension is not found in the
Labor Code itself. The oft-cited legal basis for imposition of preventive
suspension is Section 8 and Section 9 of Rule XXIII, Book V, of the Omnibus
Rules Implementing the Labor Code, as amended by Department Order No.
9, Series of 1997,
• Section 8. Preventive suspension. The employer may place the worker
concerned under preventive suspension only if his continued employment
poses a serious and imminent threat to the life or property of the
employer or of his co-workers.
• Section 9. Period of suspension. No preventive suspension shall last longer
than thirty (30) days. The employer shall thereafter reinstate the worker in
his former or in a substantially equivalent position or the employer may
extend the period of suspension provided that during the period of
extension, he pays the wages and other benefits due to the worker. In such
case, the worker shall not be bound to reimburse the amount paid to him
during the extension if the employer decides, after completion of the
hearing, to dismiss the worker.

Your responsibility
if the allegation is of criminal
action?• Document the allegation accurately and completely. Take
careful, legible notes of what the complainant says, your own
follow-up questions, and the answers to these questions.
• Immediately notify your manager and if possible, legal counsel

Supervisor’s/HR’sresponsibilitywhenthe
allegedmisconductisof anon-criminalnature?
• After getting the initial information, the supervisor should:
• 1. Contact HR for guidance on planning the investigation.
• 2. Develop a list of questions or issues that need to be answered to determine if
the allegation is true.
• 3. Make a list of potential witnesses who may help answer those questions.
• 4. Make a list of documents (e.g. time cards, work products, written policies) to be
reviewed.
• 5. The next step is usually to interview the employee who is the subject of the
allegation. (if you are a supervisor) This may not always be the best strategy, and
your initial consultation with HR will cover this aspect of your investigative plan.
• Note: The employee who is the subject of the allegation, and any other employees you
interview as witnesses have a right to union / legal representation if they request it.
• 6. Maintain a legible and orderly file of all materials assembled during the
investigation. This includes your interview notes, documents reviewed, and any
written statements from the complainant or witnesses. This file, known as the
investigatory file, will form the basis for any disciplinary action that may result from
the investigation and will be relied on to support any such action.

What is the investigatory file
used for?
• The materials in the file will be reviewed to determine whether
there is sufficient proof to sustain the allegation and, if so, to
determine what level of action should be taken. If disciplinary
action is initiated as a result of the investigation, the file
becomes the "material relied on" in taking the disciplinary
action.
• Once an employee receives the Skelly letter proposing
discipline, he/she and the union has a right to obtain and/or
review all of the materials which were “relied on” in proposing
the action. It is critical that this material be assembled and
copied prior to issuance of the intent letter so it can be given to
the employee if they request it.

P29 PRELIM NOTES

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