Policy Drafting: Rule # 1 – Be Reasonable

Labor Law 2 min read , November 16, 2020

In this post series, I’m going to discuss the 3 rules I use when I teach my workshop students to help them write company policies.

The first one deals with reasonableness.

Reasonableness means that light violations should get light penalties, while heavy violations get heavier penalties. Can’t get any simpler than that. Your policies should make the penalty commensurate or proportionate to the violation.

Let me illustrate. How does this policy sound to you?

  • Any tardiness 5 minutes or more shall be punished with a suspension of 30 days up to termination.

Pretty harsh, don’t you think? Especially with the traffic situation here in Manila. In my opinion, a more reasonable penalty to tie to this would be a written or verbal warning or reprimand. Stripping a person of employment just because the was late hardly seems proper.

If you impose this and it is challenged by the employee in the NLRC, the arbiter would likely reduce the penalty. Why? The law says that any penalty you impose should be commensurate to the gravity of the offense. [note]Associated Labor Unions vs. NLRC, G.R. No. 120450. February 10, 1999, Pioneer Texturizing Corp. v. NLRC, 280 SCRA 806 (1997); Yap v. NLRC, 278 SCRA 272 (1997); Brew Master Intl., Inc. v. National Federation of Labor Unions, 271 SCRA 275 (1997[/note] In this example, I hardly think that being late merits a termination.

Infractions committed by an employee should merit only the corresponding penalty demanded by the circumstance. The penalty must be commensurate with the act, conduct or omission imputed to the employee and must be imposed in connection with the disciplinary authority of the employer. [note]JULITO SAGALES vs Rustans, G.R. No. 166554, citing Caltex Refinery Employees Association (CREA) v. National Labor Relations Commission (Third Division), supra note 62, at 343; Radio Communications of the Philippines, Inc. v. National Labor Relations Commission, G.R. No. 102958, June 25, 1993, 223 SCRA 656.)[/note]

But that’s obvious! People know how to apply the right penalty.

Is it really that obvious? I beg to differ. I’ve seen this happen out in the field too often that I’m compelled to write about it to serve as a warning. Typically this is how it plays out in the field:

Boss has a short temper with an employee. Why? We don’t know, but that’s how it is. Employee slips up on a minor thing, boss blows up and uses that thing to terminate him. Or boss has a bad day because of things totally unrelated to an employee. Here comes the employee with bad news or has a violation. Bam! Boss pours all of his frustration onto the hapless employee. Termination ensues for a minor infraction.

The problem with this is that the law wants us to reserve the heavy penalties for the big things. If a smaller penalty would be able to do the job, then it is our responsibility to use the lesser penalties. This has to be applied both when you are writing policies and attaching penalties to them as well as when you are implementing them.

Where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe.[note]Almira vs. B.F. GOODRICH PHILIPPINES, G.R. No. L-34974 July 25, 1974.[/note]

In short, don’t terminate if it is not commensurate. If you can apply lesser penalties, use those first. Otherwise, it would be treated as an illegal termination.