Right to security of tenure, Private Security

1. Concept

Security of tenure –Security guards and other private security personnel shall enjoy security of tenure in their employment as provided by law. Their services can only be terminated for just or authorized causes after due process. (Section 10.1, D.O. No. 150, Series of 2016)

2. Due process

a. Just cause termination

For termination of employment based on just causes as defined in Article 297 (formerly 282) of the Labor Code, as renumbered, the requirement of two written notices served on the employee shall be in accordance with the following:

1) The first written notice should contain:

(a) The specific causes or grounds for termination;

(b) Detailed narration of the facts and circumstances that will serve as basis for the charge against the security guard and other private security personnel. A general description of the charge will not suffice;

(c) The company rule, if any, that is violated and/or the ground under Article 297 (formerly 282) of the Labor Code, as renumbered, that is being charged against the security guard and other private security personnel; and,

(d) A directive that the security guard and other private security personnel is given an opportunity to submit a written explanation within five (5) calendar days from receipt of the first written notice.

2) After serving the first notice, the employer should afford the security guard and other private security personnel ample opportunity to be heard and to defend himself/herself with the assistance of his/her representative if he/she so desires, as provided in Article 292 (b) (formerly 277) of the Labor Code, as renumbered.

“Ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the security guard and other private security personnel to answer the charges against him/her and submit evidence in support of his/her defense, whether in a hearing, conference, or some other fair, just, and reasonable way. A formal hearing or conference becomes mandatory only: (a) when requested by the security guard and other private security personnel in writing; (b) substantial evidentiary disputes exist; (c) a company rule or practice requires it; or (d) when similar circumstances justify it.

3) After determining that termination of employment is justified, the Security Service Contractor / Private Security Agency (SSC/PSA) shall serve the security guard and other private security personnel a second written notice, the notice of termination, indicating that: 1) all circumstances involving the charge against the security guard and other private security personnel have been considered; and 2) the grounds have been established to justify the severance of his/her employment.

The foregoing notices shall be served on the security guard and private security personnel’s last known address.

Termination for just cause as stated in Article 297 (formerly 282) of the Labor Code, as renumbered, does not entitle the security guard and other private security personnel to separation pay, unless otherwise provided in the employer’s policy, individual contract, or collective agreement. (Section 10.1[A], Ibid.)

b. Authorized cause separation

For termination of employment based on authorized causes, as defined in Articles 298 and 299 (formerly 283 and 284 of the Labor Code, as renumbered), the requirement of due process shall be deemed complied upon service of a written notice to the security guard and other private security personnel and to the appropriate DOLE Regional Office at least thirty (30) days before the effectivity of the termination, specifying the ground(s) for termination. (Section 10.1[B], Ibid.)

c. Completion of contract

If the termination is brought about by the completion of the contract, no prior notice is required. If the termination is brought about by the failure of a probationary security guards and other private security personnel to meet the reasonable standards of the SSC/PSA, which was made known to the security guard and other private security personnel at the time of employment, it shall be sufficient that a written notice is served upon the security guard and other private security personnel within a reasonable time prior to the expiration of the probationary period. (Section 10.1[C], Ibid.)

d. Pre-Termination of Service Agreement

The termination of employment of security guards and other private security personnel prior to the expiration of the Service Agreement shall be governed by Articles 297, 298, and 299 (formerly 282, 283, and 284 of the Labor Code, as renumbered). (Section 10.1[D], Ibid.)

In case the termination of employment is caused by the pre-termination of the Service Agreement not due to any authorized cause under Article 298 (formerly 283), the right of the security guard and other private security personnel to accrued and unpaid wages and other wage-related benefits, including unremitted legal mandatory contributions such as SSS, PhilHeaIth, Pag-lBlG, and ECC, shall be borne by the party at fault, without prejudice to the solidary liability of the parties to the Service Agreement. (Paragraph 2, Section 10.1[A], Ibid.)

3. Report of Dismissal, Termination or Retirement

The SSC/PSA shall submit a monthly report of all dismissal or termination, including retirement, effected during the month to the DOLE Regional Office having jurisdiction over its main or branch office using the prescribed form. All information gathered shall be used by the DOLE for policy and statistical purposes. (Section 10.2, Ibid.)

4. Reserved Status

A security guard and other private security personnel may be placed in a work pool or on reserved status due to lack of service assignment after the expiration or termination of the Service Agreement with the principal where he/she is assigned, or due to the temporary suspension of security service operations, or due to valid relief from the current place of work and there is no work assignment available. (Section 10.3, Ibid.)

No security guard and other private security personnel can be placed in a workpool or on reserved status in any of the following situations:

1) After expiration of a service contract, if there are other principals where he/she can be assigned;

2) As a measure to constructively dismiss the security guard; and,

3) As an act of retaliation for filing any complaint against the employer for violation of labor laws, among others. (Paragraph 2, Section 10.2, Ibid.)

If after a period of six (6) months, the SSC/PSA cannot provide work or give an assignment to the reserved security guard, the latter can be separated from service and shall be entitled to separation pay as described in Subsection 7.5 (m) hereof. An assignment of the security guard and other private security personnel as a reliever for less than one-month shall not be considered as an interruption of the six (6) months period. (Paragraph 3, Section 10.2, Ibid.)

5. Retaliatory Measures

Pursuant to Article 118 of the Labor Code, as amended, it shall be unlawful for the principal, SSC/PSA, or any party privy to the Service Agreement to refuse to pay or reduce the wages and benefits, and discharge or in any manner discriminate against any security guard and other private security personnel who has filed any complaint or instituted any proceeding on wages, labor standards violation, or has testified or is about to testify in such proceedings. (Section 10.4, Ibid.)

6. Preventive Suspension

Subject to the constitutional rights of the workers to security of tenure and the right to be protected against dismissal except for a just and authorized cause and without prejudice to the notice requirement under Article 297 (formerly 282) of the Labor Code, as renumbered, security guards and other private security personnel may be preventively suspended if their continued employment poses a serious and imminent threat to life or property of the SSC/PSA, its principal, or the co-workers of security guards and other private security personnel. (Section 10.5, Ibid.)

No preventive suspension shall last longer than thirty (30) days. The SSC/PSA shall thereafter reinstate the security guard and other private security personnel to his/her former position or it may extend the period of suspension, provided that during the period of extension, the SSC/PSA shall pay the wages and other benefits due the security guard and other private security personnel. (Paragraph 2, Section 10.5, Ibid.)

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References

▪ DOLE D.O. No. 150, Series of 2016

▪ Jurisprudence or Supreme Court Decisions