How to Let Go of Employees Legally and Gracefully
Firing employees is very much like ending a romantic relationship: nobody wants to break nor hear the news, and it ends up as a stressful experience to all parties involved. However, like in all relationships, weeding out employees is often necessary and may also be healthy to both the personnel and the company.
Letting employees go in the Philippines is a complicated and arduous process, especially if a company is dealing with workers who have been regularized (i.e., their employment has been deemed 'permanent').
According to Kittelson & Carpo Consulting, a local firm assisting companies planning to set up business in the Philippines, the country is different from places such as the United States when it comes to labor laws. In the U.S., “which has an ‘at-will employment’ doctrine, employers in the Philippines can only terminate their relationship with an employee if a ‘just’ or ‘authorized’ cause, as defined under the law, has been established, after undergoing due process.”
Terminating an employee in the Philippines is taken very seriously and can be a complex process, the firm further adds, especially since, when in doubt, the Labor Code of the Philippines is construed in favor of labor.
If a just or authorized cause has been established and the company has followed processes in accordance with the Labor Code, an employer may terminate an employee, whether the latter is still under probation or already a regularized worker. However, said termination should be dealt with gracefully and with dignity. Tech-enabled recruitment solutions provider Kalibrr offers tips for managers and business leaders on how to let go of employees.
1. Be Clear When You Hire
This is especially important when onboarding an employee who will undergo a probationary period, which in the Philippines should not exceed 6 months. According to Atty. Francesco C. Britanico, an expert on civil and labor laws, “due process for a probationary employee consists in having informed [them] of the standards against which [their] performance will be continuously assessed during the probationary period.” This means that at the time of the employee’s engagement with the company, the work standards should be clear to them. they should understand that their performance in the company will be assessed, and that failure to meet those standards will be ground for non-regularization of employment.
One way to keep the hiring and firing process foolproof is to conduct regular performance evaluation. Employers should make the objectives of these procedures clear to their employees, and in order for employee to keep up with the standards against which their performance will be assessed, these evaluations should be honest and transparent.
2. Do Not Demean and Humiliate Employees
Treat employees with dignity—all the time. According to entrepreneur Mike Kappel, when he needs to fire someone, he always does so in private, behind closed doors. “Employment termination isn’t just bad for that individual—it’s also bad for the other employees.” He said that a manager or business leader risks draining the morale of other employees if they fire somebody in front of everyone. He also suggests firing an employee after the other employees have left for the day, so that they do not need to leave the office in front of their co-workers.
3. Do It Face to Face
Firing an employee using any electronic method—emails, instant messages, voice mails, phone calls, and most definitely Tweets or Facebook posts—is never acceptable. In fact, doing so will run the risk of the employer getting sued by the terminated employee. In an article posted in thebalancecareers.com, author and human resources expert Susan Heathfield wrote that when a business leader fires an employee, “they should give them the courtesy that you would extend to any human being. They deserve a face-to-face meeting when you fire an employee. Nothing else works.” She adds that in today’s dominance of social media, the circumstances of the firing will not remain a secret and that the best a company can do is to do it gracefully—and personally. However, in a remote system brought about by the pandemic, this may not entirely be possible. Using a video call may be the most humane option.
4. Make Sure It Is Legal
As mentioned above, firing a regular employee in the Philippines is an arduous and complicated process. In fact, it cannot be done without just or authorized cause as stipulated in the Labor Code.
According to Atty. Britanico, if an employee is to be terminated based on just cause, they are typically entitled to the two-notice requirement. First, a written notice that should contain the specific grounds for termination against them, along with a directive that they are given at least 5 days to submit their written explanation for why they should not be terminated. The employer should also set a conference or hearing in which the employee will be given the opportunity to explain and present evidence on their behalf. If, however, termination is found justified, the employer should serve a second written notice, which shows that all the circumstances involving the charge against the employee have been considered and that the grounds have been established to justify the termination of employment.
The due process for dismissal due to authorized causes is quite different, according to Kittelson & Carpo. It normally involves the following: submission of a written notice of dismissal to the employee specifying the grounds for dismissal at least 30 days before the date of termination, and a copy of the notice to be provided to the Regional Office of the Department of Labor and Employment (DOLE) where the employer is located.
Employers are warned that if due process is not accorded to the employee before termination or the dismissal is declared illegal, the employee is entitled to receive reinstatement and full back-wages.
5. Do Not Fire Without Warning
Leave the element of surprise out. Before firing an employee, give them ample warning via regular evaluation or coaching sessions that they are not performing well. Companies are advised to do documented performance reviews at least twice a year. According to Kappel, this gives employers the chance to give employees tips on how they can improve. “In most cases, giving your employees an honest performance review will kick them into gear, and you won’t need to fire them.” He also advises employers to always give the employee every possible chance to improve first, and that firing should only be used as the option of last resort.
6. Do Not End the Meeting on a Low Note
Although terminating an employee is demoralizing to both parties, its purpose is not to demean or dehumanize the terminated employee. In fact, everyone’s best interests are served when the employee is able to move forward with their life as quickly as possible, says Heathfield. You want to end the meeting on a positive note. She advises employers to talk about job searching and how to get started. “Tell them that their contributions were valued and suggest the type of job that might fit their skills.” This does not mean conducting a counseling or sympathy session, they emphasize, but it is best to send someone out the door with words of encouragement.
Firing an employee is not a highly sought-after experience for anyone, but it can be made more satisfactory by using an effective, supportive, and humane approach. No matter how egregious the employee behaved during their tenure in your company, they should still be treated with respect.
Disclaimer: Although great effort has been exerted to come up with this article, it is by no means guaranteed for accuracy and legality. Please seek legal assistance when dealing with and interpreting labor laws.