Dear PAO,

I have been working as an electrician for a construction company for six years. Since the commencement of our current project, the management had been consistently requiring us to render overtime work of six hours a day, which meant working consecutively from 7 a.m. to 10 p.m. every day, for the past six months. Last week, I informed my immediate supervisor that I would not be able to render overtime work as I was feeling indisposed. When I reported for work the following day, I was denied entry at the project site and was informed by the Operations Manager that I was terminated from employment on account of my failure to render overtime work — which, according to him, constituted insubordination or willful disobedience to the lawful order of the employer that is a valid ground for dismissal of employees. Is that correct?

Rob

Dear Rob,

For insubordination or willful disobedience to the lawful order of the employer to be considered a valid cause for termination of employment, the following requisites must concur: “(1) the employee’s assailed conduct must have been willful, that is characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge.” (Asian Terminals, Inc., et al. vs. Danilo Marbella, et al., G.R. No. 149074, August 10, 2006, Ponente: Associate Justice Angelina Sandoval-Gutierrez)

In this regard, it is crucial to determine whether the order of your employer — that is to compel you to render overtime work — is a lawful one. At this juncture, Section 18 (2), Article III of the 1987 Constitution provides that “[n]o involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.”

The foregoing renders it axiomatic that employees may not be compelled to work in excess of eight hours on any given day against his/her will as it constitutes involuntary servitude. However, Article 89 of Presidential Decree (PD) 442, otherwise known as the Labor Code of the Philippines, provides instances wherein employees may be compelled to render emergency overtime work, to wit:

“Art. 89. Emergency overtime work. Any employee may be required by the employer to perform overtime work in any of the following cases:

“– When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive;

“– When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity;

“– When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature;

“– When the work is necessary to prevent loss or damage to perishable goods; and

“– Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. xxx”

This means that an employee may be validly compelled to render overtime work only if such work falls under any of the foregoing emergency instances. It is only then that an employee’s failure or refusal to obey the same may be considered insubordination, which constitutes a valid cause for his/her termination.

In your case, it is incumbent upon your employer to prove not only that the rendition of overtime work was justified by a genuine business necessity or operational demands, but also that you willfully defied the same. The fact that your employer had been requiring you to render overtime work from the beginning may stand as a refutation of the former, and may indicate that the overtime work was consistently imposed under exploitative circumstance.

In any case, it is relevant to note from your narration of facts that the manner by which your employer terminated your employment fell short of the rudiments of procedural due process requirements embodied in Article 292 (b) of the Labor Code of the Philippines. Under this, employers are required to furnish the employee sought to be terminated a written notice stating the particular acts or omission constituting the grounds for dismissal, commonly referred to as Notice to Explain; to afford him/her an ample opportunity to be heard and to defend him/herself with the assistance of a representative, if so desired; and lastly, to immediately notify said employee in writing of a decision to dismiss him/her stating clearly the reasons therefor.

We hope that we were able to answer your queries. This advice was 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.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].