IRR of R.A. No. 7877 (June 21, 1995)

(NAR) VOL. 6 NO. 3 / JULY - SEPTEMBER 1995 [ BWYW ADMINISTRATIVE ORDER NO. 250, June 21, 1995 ] RULES AND REGULATIONS IMPLEMENTING R.A. 7877 (ANTI-SEXUAL HARASSMENT ACT OF 1995) IN THE DEPARTMENT OF LABOR AND EMPLOYMENT Pursuant to the provisions of Section 4, Republic Act No. 7877, An Act Declaring Sexual Harassment Unlawful in the Employment, Education or Training Environment, and For Other Purposes, the following Rules and Regulations governing the prevention of sexual harassment, procedure for the resolution, settlement and/or disposition of sexual harassment cases, as well as prescribing the proper decorum in the workplace for officials and employees of the Department of Labor and Employment are hereby issued. RULE I Definition of Terms SECTION 1. Definition of Terms - As used in this Rules, the following terms shall mean and be understood as indicated below: a) Department - refers to the Department of Labor and Employment including its Services, Bureaus, Regional Offices and Attached Agencies or shall be the employer or head of office referred to under Sections 4 and 5 of the Act. b) Secretary - refers to the Secretary of the Department of Labor and Employment. c) Department Official - refers to an official of the Department with the rank of Director and higher regardless of salary grade. d) Department Employee - refers to an employee of the Department below the rank of Director. e) Overseas Labor Officer - refers to all officer assigned abroad who acts as an operating arm of the Department for the administration and enforcement of DOLE policies and programs, labor and employment laws, rules and regulations applicable to overseas workers. It may also refer to an officer who responds to, monitors problems, complaints, queries or overseas workers and their families within their jurisdiction. f) Applicant/Client - refers to a person seeking employment in the Department or any person who seeks assistance and/or avails of the various services, projects and programs of the Department, applicants for licenses, permits and all other individuals transacting official matters or business in the Department.g) Trainee - refers to a person undergoing an organizational and instructional process undertaken by the Department through which an individual acquires any knowledge and skill. h) Victim - refers to any Department official or employee, any applicant/client or trainee against whom acts of sexual harassment have been committed. i) Career Position - refers to a position where entrance is based on merit and fitness to be determined as far as practicable by a competitive examination or based on highly technical qualifications. The position is characterized by opportunities for advancement to higher career positions and security of tenure. j) Non-Career Position - refers to a position requiring entrance based on factors or criteria other than those of the usual tests of merit and fitness utilized for the career service. The tenure is limited to a period specified by law or which is co-terminus with that of the appointing authority or subject to his pleasure. It may also be limited to the duration of a particular project for which employment was made. k) Permanent Status - refers to the status of an employee once he meets all the requirements for the position to which he is being appointed, including the appropriate civil service eligibility requirement. l) Temporary Status - refers to an employment status of an employee who is not a civil service eligible but meets the other requirements of the position. m) Casual Status - refers to an appointment which is good only when such services are essential and necessary and the regular staff complement of the employing agency is insufficient to carry out the demands of the service. n) Supervisory Employee - refers to one who, in the interest of the employer, effectively recommends managerial actions such as hiring, transferring, suspending, laying-off, recalling, discharging, assigning or disciplining employees if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. In the Department, this refers to the Chief Labor and Employment Officer and to the Supervising Labor and Employment Officer. o) Rank-and-File Employee - refers to one not falling within the definition of supervisory employee. p) Committee - refers to the Committee on Decorum and Investigation in the Central and Regional Offices and Attached Agencies. RULE II Coverage SECTION 1. Officials and Employees - This Rules and Regulations shall apply to any official or employee of the Department, its offices and bureaus as well as its attached agencies, who complains of or is complained of sexual harassment, regardless of whether such official or employee is classified as belonging to the career or non-career service or holding position under permanent, temporary, casual or contractual status including overseas labor officers.SECTION 2. Applicants and Clients - This Rules shall also cover applicants for employment in the Department, its offices, bureaus and attached agencies as well as its clients, trainees and other persons transacting official matters or business with the Department against whom acts of sexual harassment may be committed by Department officials or employees. RULE III Sexual Harassment SECTION 1. Who are Liable - Sexual harassment is committed by any DOLE official or employee against another official, employee, applicant for employment in the Department, client or trainee over whom he or she has authority, influence or moral ascendancy regardless of whether or not the demand, request or requirement for submission to such acts is accepted by the person against whom acts of sexual harassment are alleged are to have been committed. SECTION 2. Other Persons Liable - Any Department official or employee who directs or induces another to commit any act of sexual harassment as stated under this Section 1 of this Rule or who cooperated in the commission thereof by another without which it would not have been committed, shall also be liable for sexual harassment. SECTION 3. When Committed - Sexual harassment is committed when: a) a sexual favor is made as a condition in hiring, re-employment or continued employment or in granting favorable compensation, promotions or privileges, and other terms and conditions of employment; b) the refusal to grant sexual favor, demand, request or requirement results in limiting, segregating or classifying an employee which in any way would discriminate against, deprive or diminish the victim of employment opportunities or otherwise adversely affect said victim; c) the above acts would violate or impair the victims rights or privileges under existing laws; or d) the above acts would result in an intimidating, hostile or offensive environment for the victim. SECTION 4. Where Committed - Sexual harassment may be committed in any work or training environment. It may include but are not limited to the following: a) in or outside the office building or training site; b) at office or training-related social functions; c) in the course of work assignments outside the office; d) at work-related conferences, studies or training sessions; or e) during work-related travel.RULE IV Forms of Sexual Harassment SECTION 1. Forms of Sexual Harassment - Sexual harassment may be committed in any of the following forms: a) Overt sexual advances; b) Unwelcome or improper gestures of affection; c) Request or demand for sexual favors including but not limited to going out on dates, outings or the like for the same purpose; d) Any other act or conduct of a sexual nature or for purposes of sexual gratification which is generally annoying, disgusting or offensive to the victim. RULE V Committee on Decorum and Investigation SECTION 1. Creation - The Committee on Decorum and Investigation shall be established in the Central and Regional Offices and Attached Agencies. SECTION 2. Composition in Central Office - The Committee in the Central Office may be composed of the following: 1) Assistant Secretary for Management Services - Chairperson 2) Director, Legal Service - Vice-Chairperson Director, Human Resource Development 3) - Member Service President, DOLE Employees Union or 4) - Member Representative 5) Representative of Supervisors - Member 6) Representative of the Rank and File - Member Members representing the supervisory and rank-and-file employees shall be elected by the employees they represent. SECTION 3. Composition in Regional Offices and Attached Agencies - The Committee in the Regional Offices and Attached Agencies may be composed of the following: 1) Resident Ombudsperson - Chairperson 2) Representative of Management - MemberPresident or Representative of Employees 3) - Member Union or Association 4) Representative of Supervisors - Member 5) Representative of the Rank and File - Member Representatives of the supervisors and rank-and-file employees shall be elected by the employees they represent. SECTION 4. Functions - The Committee shall receive complaints, investigate and hear sexual harassment cases, prepare and submit reports with corresponding recommendations for the decision of the Secretary. The Secretary may delegate to the appropriate committee in the regional office or attached agency the authority to investigate and hear sexual harassment cases arising out of its jurisdiction in accordance with the procedure set forth under Rule VI of this Rules. The Committee shall submit to the Secretary the results of its investigation and the corresponding recommendations, copy furnished the regional director or head of the attached agency. Any member of the Committee who complains of or is complained against sexual harassment shall inhibit himself/herself from participating in the deliberation of the committee. SECTION 5. Other Functions - The Committee shall develop and implement programs to increase understanding and awareness about sexual harassment. In addition, the Committee shall develop rules in the settlement and disposition of sexual harassment complaints, taking into consideration confidentiality and respect to privacy. The Committee shall also ensure that no complainant shall be subjected to further harassment or retaliation by the person alleged to have committed acts of sexual harassment. RULE VI Procedure SECTION 1. Complaint - a) The party filing the complaint shall be called the COMPLAINANT, while the officer or employee charged or against whom the complaint is filed shall be called the RESPONDENT. b) The complaint shall be filed with the Committee on Decorum and Investigation. c) No particular form is required but the complaint must be in writing, signed and sworn to by the complainant. It must contain the following: c.1 the full name and address of the complainant;c.2 the full name and address of the respondent; c.3 a specification of the charge or charges; c.4 a brief statement of the relevant and material facts. Where the complaint is not under oath, the complainant shall be summoned by the Committee to swear to the truth of the allegations in the complaint. d) In support of the complaint, the complainant shall submit any evidence he/she has, including affidavits of witnesses, if any, together with the complaint. e) Where the complaint is vague or too general, the Committee may require the complainant to specify the acts complained of as sexual harassment in writing within five (5) days from receipt of the notice, otherwise, the complaint shall be dismissed. f) Complaints sent by telegrams, radiograms and similar means of communication shall comply with the requirements enumerated in Section 1 (c) above within five (5) days from receipt of notice, otherwise such complaint shall not be deemed duly filed. g) A withdrawal of the complaint made or filed at any stage of the proceedings shall not preclude the Committee from proceeding with the investigation of the case. SECTION 2. Answer - a) Answers shall be filed within ten (10) days from the receipt of the complaint. b) The answer shall be in writing, signed and sworn to by the respondent, and copy furnished the complainant. No particular form is required but it is sufficient if the answer contains a specific admission or denial of the charge or charges and a statement of the relevant facts constituting the respondent's defense. c) The respondent shall indicate in his/her answer whether or not he/she elects a formal investigation. d) In support of the answer, the respondent shall submit any evidence he/she has including affidavits of witnesses, if any, together with the answer. e) The answer may be filed through personal service or by registered mail. If it is filed by registered mail, the date of mailing shall be considered as the date of filing. f) Unless otherwise directed by the Committee, failure of the respondent to file an answer or to appear in the investigation shall be construed as a waiver to present evidence in his/her behalf. On the basis of evidence and pleadings submitted and the report/recommendation of the Committeereferred to under Section 6 hereof, the Secretary shall then resolve the case. SECTION 3. Reply - The complainant may file a reply within ten (10) days from receipt of the answer. SECTION 4. Preventive Suspension - a) The Secretary may suspend any officer or employee for not more than ninety (90) days pending an investigation, if there are strong reasons to believe that the respondent is guilty of charges which would warrant his/her removal from the service. b) When the case against the officer or employee under preventive suspension is not finally decided within a period of ninety (90) days after the date of suspension of the respondent, he/she shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of the delay shall not be counted in computing the period of suspension. c) The Secretary may recommend to the President the preventive suspension of a presidential appointee on the grounds provided under Section 4(a) of this Rule. SECTION 5. Hearing - a) After all the pleadings have been submitted, the Committee may conduct a hearing not earlier than five (5) days nor later than ten (10) days from the date of receipt of the respondent's answer or complainant's reply if any, and shall terminate such hearing within thirty (30) days from the filing of the charges. However, the Committee may extend the period of hearing if it deems necessary. b) The parties and their respective witnesses shall be notified of the scheduled hearing at least five (5) days before the date thereof, specifying the time, date and place of hearing. c) Either party may require the attendance of witnesses and the production of documentary evidence in his/her favor through the compulsory processes of subpoena or subpoena duces tecum. d) Either party may avail himself/herself of the services of counsel. e) No postponement shall be granted except in meritorious cases. f) All documentary evidence shall be admitted for whatever value they may have and shall be attached to the record of the case. g) The parties may be required to submit their respective memoranda within ten (10) days after the hearing of their case.SECTION 6. Report and Recommendation - A report/recommendation shall be submitted by the Committee to the Secretary within fifteen (15) days after conclusion of the investigation or hearing. SECTION 7. Decision - a) Within thirty (30) days from receipt of the Committee report and recommendation, the Secretary shall render his/her decision. b) The decision of the Secretary shall be final and executory ten (10) days after receipt of the copy thereof by the parties unless a motion for reconsideration is filed with the Secretary or an appeal is filed with the Civil Service. SECTION 8. Administrative Penalty - Sexual harassment amounts to disgraceful and immoral conduct. Such conduct is classified as a grave offense and shall be punishable as follows: 1. First Offense: Suspension for six (6) months and one (1) day to one (1) year. 2. Second Offense: Dismissal. SECTION 9. Motion for Reconsideration - a) The aggrieved party may file a motion for reconsideration with the Office of the Secretary within ten (10) days from receipt of the copy of the decision based on any of the following grounds: a.1 New evidence has been discovered which materially affects the decision. a.2 The decision is not supported by the evidence on record. a.3 Errors of law or misappreciation of facts. b) The motion for reconsideration shall be deemed filed on the date of receipt by the Office of the Secretary, if filed personally, or on the date shown by the postmark on the envelope which shall be attached to the records of the case if by registered mail. c) A motion for reconsideration suspends the running of the period for appeal. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. SECTION 10. Informal Settlement - Every employer or head of office is encouraged to adopt procedures for the informal settlement of sexual harassment complaints. RULE VII Support Services to VictimsThe Department shall extend support services to its officials and employees who may be victims of sexual harassment committed by other officials and employees of the Department. SECTION 1. Support and Assistance - Subject to certain conditions imposed on official leave of absence, the victim may pursue activities indispensible to the prosecution of administrative, civil or criminal action, as the case may be, for sexual harassment on official time. Whenever possible, the victim shall inform the head of office, who is not the person complained of, at least one (1) day in advance of the intended date to undertake such activities on official time. The Human Resource Development Service/Internal Management Services Division (HRDS/IMSD) shall set up a system of referral for those seeking legal services. A directory of existing organizations, government and non-government offices, rendering legal counseling and assistance shall be posted and/or provided by the HRDS or IMSD. SECTION 2. Counseling Services - The victim may also avail of counseling services for emotional and moral support. The HRDS/IMSD shall set up a system of referral for those seeking counseling services. Such may also be obtained from specially designated officials and personnel in the Department who have undergone training for such services. A list of such specially designated officials and personnel of the Department and other relevant government and non-government offices shall be publicized or posted or a copy of which can be obtained from the HRDS/IMSD. The services mentioned under this section may be availed of by Department officials and employees who are likewise subjected to acts of sexual harassment committed by client/applicants transacting business with the Department. RULE VIII Guidelines on Proper Decorum The Guidelines on Proper Decorum is provided as Annex A of this Rules. RULE IX Appeal The aggrieved party or parties may, within fifteen (15) days, appeal the decision of the Secretary to the Civil Service Commission. RULE X Independent Action for Damages Nothing in this Rules shall preclude the victim of sexual harassment from instituting a separate and independent action for damages and other affirmative relief. RULE XI Prescription Any action arising from the violation of any provision of this Rule or Act shall prescribe within three (3) years from the commission of the act complained of.RULE XII Responsibility of the Head of Office SECTION 1. Establishment of Committee - It shall be the responsibility of the head of office to ensure the establishment of the Committee on Decorum and Investigation created under Rule V of this Rules in their respective offices. SECTION 2. Immediate Action on Complaints - It shall likewise be his/her obligation to act immediately on any complaint arising from acts of sexual harassment committed in their respective employment environment. For purposes of the preceding paragraph, immediate action shall mean acting on the information within two (2) days from the time such information was given by the offended party. RULE XIII Effect on Administrative Order No. 68 This Rules supersedes the provisions of Administrative Order No. 68, s. 1992. RULE XIV Effectivity This Rules and Regulations shall take effect upon signing by the Acting Secretary. The Department shall disseminate or post a copy of this Rules in at least two (2) conspicuous places in the workplace for information of all concerned. A copy thereof shall be filed with the University of the Philippines Law Center. Adopted: 21 June 1995 (SGD.) JOSE S. BRILLANTES Acting Secretary ANNEX A Guidelines on Proper Decorum The Code of Conduct and Ethical Standards for Public Officials and Employees (R.A. 6713) shall serve as anchor of this Guidelines, which states among others, that, "It is the policy of the State to promote a high standard of ethics in public service. Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest." (Sec. 1, Rule II of Rules Implementing RA 6713) Consonant to this, DOLE officials and employees must behave and conduct themselves in a manner that is above reproach and worthy of respect and emulation of others. Their actions must be governed by a desire to render the best possible service to the public in the most ethical manner.Likewise, they are expected to be always conscious of their responsibilities and commitment to the DOLE, and to maintain high standards of morality, integrity and professionalism. Friendship and teamwork are encouraged but enough distance should be accorded to each employee's individuality, giving rightful chance to privacy and respect. It is incumbent upon the head of office to set an example on how they should conduct themselves in public office, to see to it that his/her employees work efficiently in accordance with Civil Service Rules and Regulations, ensure a healthy working atmosphere wherein co-workers treat each other with respect, courtesy and cooperation, so that in the end public service will be benefited. In the same manner, employees are expected to show respect and courtesy towards their superiors, subordinates and peers. Courtesy demands that one set a good example. Indulging in certain activities which destroy the prestige of the office or are inconsistent with the conduct of public service is hereby discouraged. Hereunder are guidelines including, but not limited to, some rules based on accepted norms of behavior in the public service that should prevail in the office in order to maintain a healthy and wholesome environment, and prevent incidents of sexual harassment. A. Convey an Image of professionalism and authority. Employees are required to wear the prescribed office uniform in accordance with the assigned schedule. When wearing of uniform is not required, they must be modestly dressed. Discriminate use of jewelry is acceptable. Both employees and visitors are required to wear their I.D. Card/Visitor's Card at all times while inside the DOLE office premises. B. Steer conversation to productive work or career topics and avoid discussing personal life. Office gossip should be avoided. Beware of obscene conversations. C. Be assertive and in control. Develop skills to handle aggressive people and difficult social situations. D. Do not ask for or offer special favors. E. Avoid conducting personal business during working hours. Unless necessary, refrain from leaving respective place of assignment during office hours. Likewise, avoid loitering or wandering around. Minimize receiving and/or entertaining personal visitors during office hours for reasons not connected with work in the DOLE. Unauthorized possession, bringing, and drinking of alcoholic beverages in the DOLE premises or reporting for work under the influence of liquoris strictly prohibited. Avoid willful showing or exhibiting of pornographic/obscene materials, pictures, or literatures within the DOLE premises. No gambling is allowed within the office premises including games and sport activities whereby betting is involved. 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