Labor Law Advice

This page contains questions on labor law issues such as termination, the answers to which are provided by HR and Labor Law Specialist, Atty. Elvin B. Villanueva.
You can leave us a legal question using our Contact form and we’ll publish our reply as soon as we can.
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Issue on Legality of Termination and Transfer of Employment
Dear Atty.,
Good day.
Allow me to speak in tagalog for me to  clearly explain my husband situation in our company.
Nagta trabaho po kami mag asawa sa isang local manpower agency na accredited po ng isang chinese company para sa isang powerplant project.
December 23, 2009 nagsimula po ang husband ko bilang company driver sa mga chinese , ang nagpapasahod po sa kanya ay ang filipino counter part ng mga chinese (sya po ang dummy para maka pag operate po ng construction dito sa pilipinas ang mga chinese). last april po ang sabi hiniwalay na daw po ang construction at itinayo ang manpower agency (ang pinaka presidente po ng construction company at ang president po ng manpower agency ay mag asawa, pero ang lalaki pa din po ang nagdedesisyon para sa kumpanya) kung san po ako nag ta trabaho bilang recruitment specialist (nagsimula po ako ng march 2). Mga 2nd week din po ng march inilipat mula sa pagiging driver ng mga chinese ang asawa ko dito po sa manpower agency bilang isang office staff pero mas driver din po ang kanyang trabaho (wala pong papel sa kanyang pag transfer,verbal lang po).  Hangang magsimula napo ang construction at nadadagdagan na po kami ng mga tao.  Hangang sa binigyan po sya ng additional na trabaho bilang logistics coordinator at PPE in-charge. Mga kalagitnaan po ng july my dumating na isang malaysian chinese at ang sabi po sa amin magiging consultant daw po ng kumpanya para maayos ang sistema dahil wala daw po sistema ang kumpanya, sa katunayan po first time nila magtayo ng isang manpower agency.  Pinakilala po kami isa isa at kung ano ang ang position. after ilang days po bumalik ang malaysian chinese na iyun sa malaysia at ang sabi babalik ng unang araw ng august at babaguhin lahat ang sistema ng kumpanya. Ng bumalik po sya ng hingi po sya ng mga reports para po idiscuss sa darating na lingo, pero po sabado ng umaga(august 7, 2010), kinausap po ako ng president ng construction at sinasabi nya na kesyo may problema daw po sa attitude ng asawa ko, kesyo hindi daw po nag peperform ng maayos sa trabaho at kesyo ayaw daw po sa kanya ng babaeng chinese at marami pa po sila dahilan.  Sabado po ng gabing iyon,tumawag po sa akin un admin. manager namin at tinatanong kung nakausap na daw ako ng president.  ng dumating po ang admin manager namin dito sa ofis nag usap po sila ng husband ko na iforce leave lang daw muna sya dahil nga daw po meron ganun mga problema.
Sa totoo lang po ang asawa ko halos sa jobsite na po nakatira at ilang oras lang ang nilalagi sa amin dahil kelangan po nila bantayan ang mga tao dahil wala po eksakto oras ang uwi lalo na po pag may overnight (iilan lang po ang tao sa opisina sa jobsite) kaya palitan lang po sila sa pag da drive, gayon pa man po ala sila naririnig na reklamo sa aming mag asawa kahit po un lang night differential lang ang binabayaran dahil ang sabi monthly rate wala bayad OT.
August 8 po hindi na pinapasok ang mister ko, Lunes po August 9,inabutan po ako ng admin manager namin ng written and final warning for dismissal para sa asawa ko at pinapunta po ako sa jobsite kinausap po ako ng malaysian chinese regarding sa asawa ko,marami po sya sinasabi tungkol sa husband ko. at pwede daw po sya mag pa investigate sa police na may ginagawa daw pong iregulasyon ang mister ko tungkol sa mga pagpapa vulcanize ng mga gulong ng company service, na ikinagulat ko po talaga at sinabi ko sa malaysian chinese na iyon na kilala ko ang asawa ko at di nya magagawa un mga binibintang nya na iyon. Ang sabi nya sa akin i take for granted ko nalng daw kung nasabi nya sa akin un ganun. dumaan po un mga araw na laging sinasabi ng admin. manager namin na ang kakausap daw po sa mister ko ay ang president namin pero hindi po ngyayari hanggang sa ngaun, lahat ng gusto po nilang sabihin para sa mister ko sa akin po nila sinasabi. Dumating pa po ang point na un huling payroll na pinasok ng mister ko ay gusto nila i hold dahil daw po my mga personal na utang ang mister ko sa mga tao sa site at kesyo ang mister ko daw po ang kumuha directa sa sobre ng mga tao na yun, nagalit lang po ako talaga kaya binigay nila ang sahod ng mister ko.
Ang pinagtataka ko lang po bakit hindi nila makausap ng directa ang asawa ko, bakit sa akin lahat pinadadaan.
Pangalawa po, bigla nila ite terminate ang asawa ko with out due process at ni walang work evaluation performance sila ginawa,  gumawa sila ng mga imbestigasyon na sa huli sila din po ang na pahiya.
Atty. kung sakali po ba ihabol namin ito sa NLRC, meron po ba kaming laban para sa status ng mister ko.
Ang manpower agency po na ito ay naka rehistro sa san laguna pro ang operation po ng business ay dito sa bataan at wala po itong pang business permit dito ang alam ko po kung san ang operation ng business dapat meron din po itong permit to operate kahit na branch po ito.  Hangang ngaun po hindi pa rin sila nagkakaltas ng mga SSS, philhealth, pag ibig at tax.

Gusto ko lang po malaman kung ano ang maganda naming gawing mag asawa, masyado na po nila niyuyurakan ang pagkatao ng mister ko.

Maraming salamat po at sana matugunan nyo po itong napakahaba kong sulat.
Maraming salamat po.
God Bless….
Gumagalang,
weng
Atty. Elvin Villanueva says:

Dear Weng,

Based on your story, the following labor issues need to be resolved:

1.    Whether or not the dismissal of your husband from his work is illegal;

2.    Whether or not there was procedural due process in the dismissal; and

3.    Whether or not the local manpower agency and the Chinese company are one and the same entity that can be held liable for illegal dismissal.

Under the Labor Code, the following shall be the just causes for dismissal of an employee:

“Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes:

a. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

b. Gross and habitual neglect by the employee of his duties;

c. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

d. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

e. Other causes analogous to the foregoing.”

Seemingly, the ground the employer used for the dismissal of your husband is poor performance which is along the line of paragraph (b) of the above enumeration.

As a general concept, poor performance is equivalent to inefficiency and incompetence in the performance of official duties. (Miranda vs. Carreon, G.R. No. 143540, April 11, 2003.)

However, gross inefficiency and unsatisfactory rating can be a just cause for dismissal only if it amounts to gross and habitual neglect of duties. (Mitsubishi Motors Philippines Corporation vs. Chrysler Philippines Labor Union, G.R. No. 148738, June 29, 2004)

The fact that an employee’s performance is found to be poor or unsatisfactory does not necessarily mean that the employee is grossly and habitually negligent of his duties since gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. The employer should be able to present substantial evidence that would substantiate the cause of the employee’s dismissal. (See Universal Staffing Services, Inc. vs. NLRC, G.R. No. 177576, July 21, 2008)

Simply put, poor performance alone is not equal to gross and habitual neglect of duty warranting dismissal for cause under Article 282 of the Labor Code.

Even if we have to assume that your husband’s work performance is poor, such fact does not necessarily mean that he is grossly and habitually negligent of his duties since as held in the case of Eastern Overseas Employment Center, Inc. vs. Bea (G.R. No. 143023, November 29, 2005) gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care which was not shown in the case of your husband.

On the second issue, procedural due process requires that notices be given to and a hearing/conference be conducted for the person charged. There are two (2) notices to be observed in employee dismissal: The first one is the notice to explain or the so-called show-cause memo (SCM) and second, the notice informing the employee that he is dismissed from service. (See King of Kings Transport, Inc. vs. Mamac, G.R. No. 166208, June 29, 2007).

Again your story does not show that said aspect of due process was observed by the employer.

On the third issue, it appears that the local manpower agency and the Chinese company are one and the same. At first, he was a salaried employee of the Chinese. Then when the “construction” became independent, he was “transferred” to the manpower agency. There was no evidence of severance of his employment from the Chinese company. What happened simply was a “transfer” which connotes an internal movement within the same organization.

Assuming that these organizations have two separate registrations with SEC, the same conclusion can still be made since the continuity of service rendered by your husband belies two separate entities. There is an obvious circumvention of labor laws designed to upset the rights of the worker. The doctrine of piercing the veil of corporate fiction in our laws seems to apply.

It occurred to me as well that your husband was a driver of the Chinese which duty he performed also for the same people while in the agency/construction company. The way I see it, the manpower agency is merely a representative of the principal Chinese, such that they are one and the same. Articles 106 to 109 on labor contracting find their application here also. Both may be held solidarily liable for the claims of your husband.

Based on your facts, you have a fighting chance if you take this matter to our labor courts (NLRC). As to non-remittance of SSS, Pag-Ibig, Philhealth, Tax, etc. these are governed by separate laws and rules. A criminal liability is waiting for the employer for his failure to comply with the mandate of said laws not to mention penalties and civil liabilities.

 Webmaster’s NoteAtty. Elvin B. Villanueva is also the author of Guide to Valid Dismissal of Employees, Employee Compensation and Benefits Parts 1 and 2.

Disclaimer: The opinion, advice and statements given above are based on limited facts which probably restrict a thorough analysis of the issues. They cannot be made as basis of any claim or defense before any court or tribunal. Readers asking for advice are encouraged to seek professional legal services in case they plan to take to court the issues discussed here.

167 thoughts on “Labor Law Advice

  1. burick

    IS IT LEGAL TO ORDER EMPLOYEES TO GO TO WORK ON A REGULAR HOLIDAY LIKE NOV 30 ? IF NOV 30 WAS MOVED TO NOV 29, IS IT LEGAL TO ORDER THEM TO WORK?

    1. Atty. Elvin Villanueva Post author

      Today’s Guest Blogger is Lawyer and Author Atty. Elvin Villanueva. This is his legal opinion:

      “Yes, employers can compel employees to work even on regular holidays if business necessities require. Our rules provide that establishments and enterprises may operate or open for business on Sundays and holidays provided that the employees are given the weekly rest day and the benefits as provided in the Labor Code and its implementing rules. In this case, employees suffered or permitted to work on a regular holiday shall be paid 200% of their regular daily wage for the first eight (8) hours of work.

      The regular holiday on November 30 was moved to November 29. Hence, November 30 is a regular working day. “

  2. Rizza

    Good day Attorney!

    May I seek your advice on my employment situation?

    I am a Registered Nurse and was employed last July 2010 (as a volunteer nurse) till present at a private tertiary hospital in Pangasinan. My dilemma is I was only given a one-month contract as volunteer. I was constant in my efforts to remind the management of my working contract as I have rendered six months service receiving a volunteer allowance with only a month’s volunteer contract.

    What should I expect after this? Is it legally wrong to expect a promotion of some sort or at least a contract stating that I be a probationary employee..? I was told by the HR department that they are considering to give me a six-months volunteer contract (again).

    Thank you!

    1. Atty. Post author

      Rizza:
      A reply will be sent via email. Kindly check in a while.

  3. Rizza

    Thank you for your immediate response Atty.!

    What I would like to further inquire is the legality of my employment.. The management only gave me a contract as a volunteer nurse for one month (July 2010), but I continued working for the hospital for over six months now without contract.

    Again, thank you!

  4. Rizza

    Thank you.. If I dont want to renew my contract as a volunteer nurse, the hospital administration cannot force me to..? I am not legally bind to them, am I?

    1. Attorney Post author

      Rizza: If your contract has expired, you don’t have the obligation to renew it. Even before expiration, you can voluntarily leave by giving your employer the necessary notice (resignation).

  5. Maria Rocelle

    I work at a call center. I received a memo asking to submit an explanation for not calling in(AWOL) on 03/24/11 & 03/28/11. I explained that I had no call credits at the time & couldn’t buy load because I was so sick and shaking badly from chills. I was still cited for AWOL on 03/28/11 though I did text my supervisor to advise that I was still sick but I told her I may be able to report for work later since it was still early & my fever may go down. I presented a med cert dated 03/28/11. I was informed that I was due for termination & will be scheduled for a hearing w/hr. I was also cited AWOL on 01/19/11 & provided also med cert. Does the company had legal grounds to terminate my employment. I qualified for our incentives programs & I scored with the highest level of the incentive. Also, I passed our recently held annual performance review & I am expecting a raise this April 2011. I would highly appreciate your insight on this. Thank you.

    1. Atty Post author

      Maria Rochelle: It depends on the company policy regarding AWOL, whether it’s your first or second offense, if you were previously warned of harsher penalties, and whether the employees handbook or manual of offenses specifies the penalty of termination for repeatedly going on AWOL. I suggest that you air your side during the HR hearing, bring copies of your medical certificate, and promise to improve your attendance or avoid future violations.

      Your good or excellent performance may weigh in your favor but it may not be a sufficient defense against termination because your alleged violation touches on attendance, not on poor performance.
      I hope this helps.

  6. Jaycel

    Dear Atty, 17, April, 2011

    Good day!

    I am writing to consult my employment situation. I was employed last Dec 2010 in a Chinese owned realty development firm. I was given a 1 month contract, from Dec 2010 to January 2011. Pagkatapos ng 1 month contract ko po, pina-renew nila ulit ako ng another contract pero for 4 months na, from january 2011 to may 2011. Since I was assigned to a certain project which will end up for 1 year, so they change my contract. By Last week of february 2011, pinapirma nila ulit ako ng another contract from february 2011 to july 2011. Dahil sa kakulitan nila, napapirma ako kahit mali naman talaga ang ginawa nila, dapat pinatapos muna nila ang 4 months contract ko bago nila ulit ako bibigyan ng susunod na contrata. By first week of march, napapansin ko na mali-mali ang binigay nilang sahod sa akin sa napag-usapan namin. Hindi ko naintindihan ang mga computation nila. Pag may overtime ako hindi nila nilalagay na over time kundi ini-offset nila sa absences at under-time ko, na dapat magkaiba naman ang percentage rate ng regular working hours to overtime hours. Kaya naisipan kong magresign at hanggang last week of may nalang ako, bali nagbigay ako ng 2 months na allowance para naman ma-turn over ko ng maayos ang mga gawain ko sa susunod sa akin. By first week of april 2011, biglang nag-decide ang boss namin na hanggang april 20, 2011 nalang ako, at hindi ko na rin makukuha ang sahod ko sa katapusin kahit papasok ako ng hanggang april 20 kasi nga daw yun ang nakalagay sa company rules nila na pag nag-resign daw, hindi na makukuha ng empleyado ang pinakahuling sahod kahit pinasukan pa ito ng empleyado. Ang tanong ko:
    1. Legal ba na babaguhin ng employer ang contrata ng isang employee kahit hindi pa natapos ang unang contrata na pinirmahan ng empleyado?
    2. Legal ba na hindi na nila ibibigay ang huling sahod ng empleyado kahit pumasok pa siya, kasi nga nag-resign na siya?. For example, nagresign siya ng April 15, and the effective date of his/her resignation will be on May 15. Matatanggap nya ang sahod from April 15-31, pero hindi na nya matatanggap ang sahod from May 1 – May 15 kahit pa pinasukan nya ang mga araw na ito. Tama ba yun?
    3. Pwedi ko ba silang i-reklamo kapag hindi nila ibigay sa akin ang back pay ko?. Kasi marami na din po silang empleyado na hindi binigyan ng back pay. Dahil sa walang nagrereklamo laban sa kanila, kaya ginagawa pa nila ang mga sistemang ito hanggang ngayon.
    4. Legal ba na kapag may mga binabayaran sila ay hindi pangalan ng companya ang nakalagay sa checky or hindi pangalan ng companya ang nakalagay sa payer, kundi pangalan ng empleyado nila?. Legal ba din na kapag may binili silang lot ay hindi pangalan ng companya ang ilalagay sa mga permit (example: cutting of trees), kundi pangalan ng contractor ang pinalalagay as a payer or as a user?

    Sana mabigyan po ninyo ng pansin ang hinanaing ko na sana maputol na ang ganitong gawain ng mga employer sa Pilipinas, lalo na kung ang gumawa nito ay dayuhan lang ng bansang pinas. No offence lang po Atty., pero napapansin ko lang na mostly mga chinese ang gumagawa ng ganitong sistema at pagpapatiis sa ating mga kababayang pilipino, sa sarili pa nating bansa?, parang nawalan na tayo ng freedom at kararapatan. Kelan tayo kikilos?, saka na kapag mga dayuhan na ang maghahawak ng pilipinas?

    Paki-reply nalang po sa email ko.

    Looking forward to hear from you soon..

    Respectfully Yours,
    Jaycel

    1. Atty Post author

      Jaycel: Here are my responses numbered according to your questions:
      1) Yes, it is possible for a contract to be replaced with a new one before the expiry of the first for as long as the parties to the contract agree to it. It would seem in your case, that you freely consented to the new contract.
      2) You are entitled to the last pay until the end of your employment although it is possible that under its existing rules, the company will process and release the final pay after a certain period or until you have been fully cleared of obligations to the company.
      3) If after undergoing the exit clearance, you are still unable to collect your final pay, then you may go to the Department of Labor and file a claim against your employer for unpaid wages.
      4) It is enough compliance with labor laws that an employee’s salary is paid, regardless of the actual source of the funds.

  7. Angeline

    hi atty.,

    On behalf of all my co-employee I’ve decided to ask, is it legal if our newly hired manager is planning to revised our previously signed contract to have its KPI and use it to terminate us whenever we don’t meet his expectations?

    It is normal for us to cooperate with some changes he is implying but we are just confused if it is right that aside from our job, we are given other task which is not indicated on the job descriptions that we signed on our contract.

    Can he dismiss us due to poor performance? and if ever what are the factors we should consider and rights if he try to do so??

    I’ll appreciate your immediate response.

    Thank you!

    1. Atty Post author

      Angeline: It’s difficult to say given limited understanding of the facts and circumstances. But any change in an employment contract, to be valid, must be with your consent. Generally, an employer is allowed to assign tasks to the employees as part of its management prerogative for as long as the additional tasks are reasonably related to the existing job of the employee concerned.

      Termination due to poor performance is justified under the labor code but the standards for performance have to be made clear at the onset of the employment, the penalties for poor performance be reasonable or commensurate to the offense, and the termination must still undergo due process. Ordinarily, an employee is given a warning and a reminder to improve before the termination process takes place.

      As previously stated, my opinion is based on the information stated in your query. I hope this helps.

  8. Jennifer

    Dear Attorney,
    I work as an HR , here the scenario , meron kami tauhan sa amin kompany since 2008 up to present but one time we caught them na nag pupuslit pala sila ng mga bakal sa kompanya in our rules its automatically dismissed. after the investagation we found that they are guilty, then they confessed na maraming kasabwat na kasamahan din nila sa pag labas ng mga mapapakinabangan nila upang kanilang ibenta, . those employee that we found guilty we terminate them. my question attorney 1) Do we need to pay for there separation pay ?even they are dismissed 2) maaari rin ba namin i terminate ang mga ibang involve sa pag labas ng mga gamit kahit walang sapat na ebedensia kundi ang isinulat na statement ng mga taong unang natangal kung sino sino ang involved? 3) kung ang isang empleyado ay nag resigned na ngunit siya ay nag trabaho ng 10 taon meron ba siyang makukuha na separation pay or back pay ?
    Maraming salamat po naway masagot po ninyo ang aking mga katanungan . Godbless

    1. Atty. Post author

      Jennifer:
      1) For employees who were terminated for just cause (theft) and after undergoing proper procedures for termination (2-written notices and a hearing), there is no need to pay separation pay.
      2) The other employees named by the first batch terminated after hearing must undergo the same procedure for termination BEFORE you can find them guilty and terminate them accordingly. Please make sure to follow the proper procedures for termination. Even with just cause, the employer’s failure to observe procedural due process may expose it to damages.
      3) An employee who resigns after long service with the company may be entitled to monetary benefits if it is provided in the CBA or other company policy, or if it has been the company’s practice to give additional remuneration for humanitarian reasons.

      I hope this helps. Please take note that the opinion given is based on the bare facts presented and may differ from the legal opinion of other lawyers. In cases of termination where the company may be exposed to future liability, I strongly suggest that you consult your own lawyer before terminating any employee to protect the company’s interest.

  9. Jennifer D.P****

    Dear Atty,
    Thank you so much .God bless Always

  10. Jenny

    Dear Atty.
    Heres the scenario we had an employee na ma eendo na by may 26 , 2011 . sa ngayon po di po namin sia ma reregular1) maari po bang i renew nalang po namin sila ulit ng contract for another 5 months as probation again ?2) kapag po ba ni renew po namin sila ng 5 months again di po ba ito i coconsider na regular na sila based po kasi dun sa nabasa ko sa libro ninyo na once na continue na one year yung naging work ng emplyado whether continous or broken shall be considered regular?
    3)anu po ba ang ibig sabihin sa libro po ninyo na ” Probationary period
    may extended only upon mutual agreement of the parties”?. sa akin pagkakaintindi lang po correct me if i am wrong once po ba nag karoon kami ng kasunduan ng empleyado ko na continous contract lang po sia at every time na ma eendo sia.di po ba i coconsider na regular na yun.

    1. Atty. CFlorido Post author

      Jenny:
      An employee who is allowed to work beyond the probationary period may be legally considered a regular employee. The exception is when the probationary period is extended for reasons such as the failure of the employee to satisfy the standards of regularization, but this must be expressly mentioned at the onset of the probationary period and the employee must agree to this. The exception cannot be used by the employer to deprive the employee of regularization due to economic reasons.

      When you speak of “renewal”, are you referring to a contractual employee whose employment is defined to end at a specific date? If so, then a renewal that will result in the employee working for more than a year may result in his regularization. This is different from the probationary employee whose employment is not interrupted unless he fails to meet the performance standards required for regularization. In which case, no renewal is necessary for the probationary employee to be considered regular; if he is allowed to work beyond the probationary period (usually 6 months) he may already be considered a regular employee.

  11. Analyn

    Dear Atty,

    Good day! Please advice. My friend was hired as a bartender at a newly opened restaurant last September, 2010, he started working even without employment contract last September 5, 2010, though they have a verbal agreement that they’ll be on probationary employment. Last Febuary 11, 2011 he receive a letter that his service is due to end effective immediately, grounds for his termination is that he didn’t pass the evaluation and the regularization exam, aside from that he also received 2 memo last January, 1 for being AWOL and second for negligence of not locking the stock room. My question is, first, can he get a separation pay or any form of payment since he was terminated? please enlighten us because we’ve read that separation pay were only given to those regular employees, since he is not regular or has worked for less than 6 months, does that mean he is not eligible for any pay?; second, can the company charge to him damages at the bar, like missing cases of beverages, damaged blender, missing glasses, left chit etc., just in case they can, what if the total amount of damages is more than what he is supposed to get from the company? can the company demand payment from the employee for such losses? third, can he demand for a back pay even if he has not finish the clearance form? (the manager refuses to sign the clearance from because of the damages/loss property, the manager asks him to pay for it first or he has to sign first the letter stating that he agrees that damages can be deducted to his last pay) My friend doesn’t want to sign it, he refuses to pay for the losses due to this he can’t complete his clearance.
    Please enlighten us, as we’re not sure if he can still claim for anything due to issues that was discussed above.
    Thank you for your time. Looking forward to your response.

    Respectfully,
    Analyn

    1. Atty. CFlorido Post author

      Analyn: An employee terminated for just cause (such as failure to meet established company standards for performance) is not entitled to separation pay. Loss or damage to company property entrusted to an employee may be charged against him. It is ordinary for an employer to require clearance from liabilities before releasing the final pay (if any is still due to the employee). I suggest that he obtain a clear computation first of his liabilities so that he knows exactly how much will be left of his net pay after the corresponding salary deduction. Note also, that if he fails to settle his obligations properly with his previous employer, he may not be able to obtain a Certificate of Employment which most new employers require these days.

  12. chel

    The company I work deducts SSS, pag-ibig and philhealth but it wasn’t remitted to proper government agencies. I’m serving my 30-day resignation notice and I want it to be paid before I leave. I asked the company about but there was no clear response. What cases can I file? Thank you so much.

    1. Atty. CFlorido Post author

      Chel: You can raise your issues directly with each of the government agencies involved. They normally have a complaints or actions desk where you can inquire about the appropriate steps. In the meantime, your resignation will not extinguish your previous employer’s liability, if any.

  13. Bee

    Dear Atty,

    With the implementaion of the NCR WO #16 where the Php 22/day is not integrated into the basic pay but as an allowance, how do we address issues in distortions in salaries? There is a mention that the COLA is part of the minimum wage but shall be excluded from the computation of wage related benefits , such as overtime pay, night didfferential and 13th month pay BUT shall form part of the computation of the mandatory contributions to the SSS, Philhealth, and Pag-Ibig… Is it mandatory to employers to adjust even those employees receiving ABOVE the minimum wage pay (of Ph 404) before NCR #16 was implemented? Thereby, receiving also the Php22/day COLA ? If not , how do we address the distortion ?

    1. Atty. Elvin Villanueva Post author

      The new wage rates per Wage Order No. NCR-15 is P426.00. You are correct in saying that the P22.00 shall not be considered for purposes of the benefits you mentioned. This is in accordance with the definition of basic wage under R.A. 6727 or the Wage Rationalization Act which excludes “allowances”.

      However, if the new wage rates result in distortion, we normally resolve that using the suggested formula like Pineda, Bagtas, WireRope, etc. (Please see our book Guide on Wage Order and Minimum Wage for discussion on this formula). Take note that these are suggested formulas. There is wage distortion if the old gap in the salaries is eroded or contracted by more than 50%. Take note as well the rules in resolving wage distortion if the establishment is with a union or without. These topics are discussed in the book as well.

      Those receiving above P404.00 but below P426 at the time of the effectivity of the wage order should be adjusted, otherwise they are below the minimum wage which is prohibited. But those who are already beyond P426 at that time may not be adjusted, unless there is wage distortion.

  14. mav

    Dear attorney,

    Here’s the scenario of my wife condition at work. She have taken several sick and vacation leaves since the start of 2011. But due to some emergencies she was forced to file leaves. Some of those sick leaves as pregancy related and vls are taken due to hospitalization of her parents and daughter. Leaves were proven valid and approved by her boss. Now, the problem comes because of her pregnancy risk condition she was adviced to take a 1-2 months of bed rest. Her bosses are thinking that she is not physically fit to work because of those leaves. They are considering to dismiss her from work.
    With this, can you please enlighten us? what action that we can do? As per my opinion, since 1-2 months leave is too long and will affect their operation they are using the previously taken leaves as a way to get rid of my wife.
    Thank you for your time. I’m looking forward to your response.

    1. Atty. CFlorido Post author

      Mav: I suggest you wait until your wife receives a memo leading to termination. She is entitled to due process and can use the procedure to explain her side and ask for consideration regarding her condition. Until then, “cross the bridge when you get there.”

      1. mav

        hi again Atty, binasa na po sa kanya un memo via phone nung HR manager so incase gusto daw niya ng copy magdropby sya sa office. Unfortunately, she cannot do this kasi nga bedrest cya. Ang nabaggit daw po sa memo is not physically fit due to numbers of leaves taken in the early first quarter ng taon which are all approved by her manager. And nadiscussed na with the other managers and un HR she decided na iterminate.

      2. Atty. Post author

        Mav: A lengthier reply was sent through your email address. For the benefit of others similarly situated, bear in mind that specific details of each case must be viewed first in order to assess your wife’s situation. As a general rule, all terminations must undergo due process and be based on a just or authorized cause. Assuming there is just cause for terminating her, the company still has to take the prescribed steps for termination including the sending of two notices, hearing and giving your wife the opportunity to explain why she should not be terminated. A defect in the procedure can give rise to a legal question of illegal dismissal in the labor court, where the ground for dismissal can also be questioned at the same time. I hope this helps others who are similarly situated.

  15. rochelle b

    good day atty!i badly need a legal advice about what happened to me,i’m a call center agent.last May 19, 2011, during my shift my team captain asked me to logged out. he said i’m on preventive suspension because last shift (May 18, 2011) a report from the command center was saying that i left my station undertime (my shift ends 6:30am). my team captain was the one who logged me out around 7:20am. they let me sign the notice/letter of the suspension and asked me to submit my explanation.

    but my point is, last May 18 shift i left my station on time and it’s 6:30am..my only fault is i forgot to log out. my team captain opened my system and just saw the screen where you can log in and log out. that’s is normally what i do, minute before end of the shift i close all the other applications except for the page where i can log out. the only evidence they provided me was a print screen copy of my logged in and the time my team captain logged me out.

    during the hearing, i explained my side and indeed i’m 100% sure that i left my station on time. i told them that i will not accept the one piece of paper evidence that they are providing to terminate me. i requested for the complete copy of my call activity during that shift (command center hold those copies) so they’ll know that 3minutes before the end of my shift i still have a client on the line, a copy of the CCTV so they can see what time i went out, and the record where i swipe my id to enter and go out of the office, and to of my officemates whom i talked to before going home. they said they will request a copy of those evidences and they will advise me for the next hearing.

    then a week after, my team captain told me to go to the office and the account manager will talk to me. so last night i went there,talked to the boss and boom! she said i am terminated! that unfortunately the CCTV that time were not working, they cannot retrieved the time when i swiped my id, no copy of my call activities that day, and that my witnesses don’t like to comment on the issue.

    so they terminated me without any valid evidence – the report from command of my logged in and the time my team captain logged out me is not enough. i did not abandoned my post under time!

    can i file a case against the company?what can i do?please help……….

    thank you….

    1. Atty. CFlorido Post author

      Rochelle: Terminations due to just causes are trickier to decide than those of retrenchment because an employer is allowed to impose disciplinary sanctions on employees who violate established policies as part of management prerogative. If you feel that the company did not have just grounds for terminating you, then I suggest that you hire a lawyer to take up your case with the labor arbiter. Cases of termination require careful study on its details because the rules of valid dismissal cover both procedure and substance (causes or reasons). It is possible to have just grounds or causes for dismissal but if the proper rules were not followed then it could amount to an illegal termination. Things like these require an examination up close of all documents and circumstances from start to end of the administrative case before anyone can say that, indeed, there was an illegal termination. So, your best move is to present all your documents to a labor lawyer who is willing to take your case. I hope this helps.

  16. Renan

    dear Atty.

    I plan to resign in my present job, I will follow the 30 days notice. my question is, can I still use my leave to cover for the last 15 days in y 30 days notice? would that be legal?

    1. Atty. Post author

      Renan: If you have remaining vacation leave credits (not sick leave) then you may apply for its use during the last days of your employment, BUT this is still subject to the approval of your employer who may validly require you to report for work so as not to disrupt operations or for you to complete your turnover.

  17. jun

    good day atty,
    tanong lang ko lang po, sa 30 days notice na binigay ng company for separation. kailangan pa po bang pumasok sa trabaho? ng 8-5pm. kasi diba dapat it is alloted para makahanap po kami ng ibang trabaho?

    tama po ba na hindi nila ibibigay yung certificate of employment kapag hindi kami pipirma sa quit claim?

    tama po ba na hindi nila kami bibigyan ng sweldo ngayong katapusan at sa 15 july nalang daw at kailangan pirmahan namin yung quit claims. kung hindi, hindi nila ibibigay yung sweldo?

    tama po ba na yung clearance na dapat pinapipirmahan namin, at pinipirmahan namin, nakalagay din doon ang quit claims, meaining nakasaad din po doon na wala na kaming habol kahit anu sa company?

    at masasabi po bang retrenchment ang ginawa kung nagtangal sila ng regular na empleyado pero nag hire sila ng contractual/ part time na empleyado na mas marami pa sa tinangal nila (sobra sa doble), sa kadahilanang nakatipid sila ng konti dahil walang basic ang ang contractual at per hour lang po ang bayaran?

    salamat po, sana masamahan nyo rin po sana ako ng reference na mga kaso or batas na tumutugon sa aking mga katanungan. salamat po ng marami. at marami po kayong natutulungan.

    1. Atty. Post author

      Jun: A reply was sent through email. Employees given a 30-day notice still have to report for work; remaining days of work are to be used for completing unfinished work, turning over company property and other items of work, clearing liabilities with various departments, tying up other loose ends in the company. If you need to attend employment interviews, I suggest you ask prior permission to use unused vacation leave credits for that. Retrenchment is allowed in order to prevent serious losses; rehiring after retrenchment may be a valid exercise of management prerogative since the company is still operating. Terminated employees may question the legality of their termination at the Department of Labor, who may or may not uphold the employer’s ground for termination. I hope this helps similarly situated employees.

  18. renan

    Atty,

    Thanks for the reply, If you don’t mind I have a follow up question, since I am resigning I wonder if I can still get my 13 month pay, in my contract it says I will only be entitle for 13 month pay if I am still actively employed on December for the year period, but I read in the REVISED GUIDELINES
    ON THE IMPLEMENTATION OF THE 13TH MONTH PAY LAW. that An employee who has resigned or whose services were terminated at any time before the time for payment of the 13th month pay is entitled to this monetary benefit in proportion to the length of time he worked during the year, reckoned from the time he started working during the calendar year up to the time of his resignation or termination from the service. Thus, if he worked only from January up to September his proportionate 13th month pay should be equivalent of 1/12 his total basic salary he earned during that period.

    Nothing herein shall be construed to authorize any employer to eliminate, or diminish in any way, supplements, or other employee benefits or favorable practice being enjoyed by the employee at the time of promulgation of this issuance.

    So thus this mean I can still claim for my pro-rated 13 month pay when I resign next month even if my contract stipulate that I have to be employed until December to have my 13 month pay?

    1. Atty. Post author

      Renan: Yes, you are entitled to a pro-rated 13th month pay at the end of your employment.

  19. kae

    Dear Atty.

    At first hesitant po ako to write because very sensitive po kase ang case ko.
    I am an accountant in a multinational company. i have committed a reports misrepresentation. wala naman po monetary involve. i just manipulated some reports para maachieve ko ung mga KPI’s ko. At first i told them magreresign na lang ako and pumayag naman sila. But i did ndi ko kaagad sinubmit yung resignation ko until nagdecide sila na idismiss ako. Sinabi nila na i only need to report hanggang May na lang. on my last day sa office wala naman sila binigay na dismissal letter so i left my resignation which eventually inaaccept na nila. Ang question ko po. now that i already resigned and me nakita pa sila na mga misrepresented reports na ginawa ko, can they still go after me. ano po ba ung magiging hold nila sakin?

    1. Atty. Post author

      Kae: Sent a reply to your email address. Please check.

  20. leslie

    hi atty..just want to ask for your legal advise. My friend was absent and not able to file a leave form due to it has just slept out of his mind. he was absent April 15, April 25, may 6, and may 12..this company is very lenient but just so his boss have some office politics issues then he make a report to the grievance committing and the committee made a decision to suspend him for30 days without pay. it is the maximum days for suspension. never in the entire establishment that this was happened , lots of big issues and anomalies happened but never that they suspend those people. during those days that my friend was absent he never failed to inform his office mates nor his secretary and he always make sure that he will cope all the work that was left to those days that he was absent. he was absent not to the reason that he neglect his duties but it is due to the unforeseen even..his wife just delivered a baby last feb 24through cs and still recovering they have no yaya..so there are those times that he has no choice but to be absent. he was being warned, then after that given a memo to explain and that’s it. to those said dates he was again given a memo to explain.

    my point was somehow this is unfair because this was not being applied t other employees to also commit such mistakes.given that he is guilty but a 30 days suspension was a heavy magnitude for such.

    can there be light to this? if he will make an appeal to the president shorten the suspension, just want to what to point out so that the appeal might be granted. the letter of appeal will be due today. hoping for your response. thanks atty

    1. Atty. Post author

      Leslie: From your story, it sounds like the employer complied with the proper procedure for disciplining an employee. Of importance is the series of memos requiring him to explain, the issued warning and the frequency of the offenses. But of course, sending a written appeal is still possible but he has to explain exactly what prevented him from showing up, if as you put it, it was due to his wife’s delivery and lack of a yaya to help his wife at the time. Just as you said, he can also appeal that the duration of the suspension be shortened for humanitarian reasons, and include a statement that he will avoid repetitions of the same offense. Ultimately, the decision to relax the suspension is part of the employer’s prerogative to discipline its employees. I hope this helps.

  21. leslie

    this was his draft appeal: is this okay na?

    It was stated in the memorandum that I have committed serious lapses in my tenure but I have had no intention whatsoever of being absent several times. Unforeseen events that have occurred at that time gave me no choice. Specifically on my absences on Saturday duty during enrollment period was a result of humanitarian reason and not of lack of intention to work. At that time my wife was still recovering from the operation she had while giving birth, lack of a yaya and we have no other persons available to assist us, and because of that my attention was needed.
    2. The length of the suspension although already has been agreed upon by the EDGC will ultimately be a heavy burden not only for me but my family. I am unaware that the magnitude would be as such, my willingness to work is not in question because I am willing and able to do my duties but unavoidable circumstances was present at those times that I was absent.
    3. I have stated that I will accept whatever administrative sanctions to be given for my actions but a 30-day suspension was far from what I have had in mind, being that 30 days is the maximum penalty on suspensions, and in all hopes that this petition will merit a consideration for the suspension length be shortened. It was never my intention to neglect responsibility and currently I am very much willing to continue to provide service to the university to much of my ability.
    4. At this point in time, provisions for my family is in such a high demand that the length of suspension would cause a tremendous gap, and in that light, my humblest request for shortening the suspension time is requested.

    By no means that this petition implicates my unwillingness to submit to rules, it is but a plea for reconsideration, wherein which, even now, that all efforts are being exhausted in repositioning myself and making sure that the same mishap shall not be repeated.

    1. Atty. Post author

      Leslie: Yes, it looks fine to me. I’m sorry for not seeing this sooner. I had just returned from a trip out of town. I hope all is well.

  22. estrelito notario

    Dear atty. mam ano po ba ang magiging pananagutan ng company in case na di nila na remit ang mga contribution sa philhealth. may kulong po ba ito or may babayaran sila sa philhealth members at attorneys fee.
    salamt po.

    1. Atty. Post author

      Estrelito: This query already has a reply in an earlier comment. Yes, there are legal consequences for an employer not to remit deducted contributions to Philhealth or any other government agency such as SSS and PagIbig. Please direct your complaints to PhilHealth for further action and advice.

  23. estrelito n.

    Dear atty. Christine. mam na terminate po ako noong 1997 at nag file po ako ng case sa nlrc pero natalo po ako sa arbiter at ng mag apila po ako sa commission ay na reverse ang decision at na back to payroll po ako. pero ang salary ko na nakukuha sa company ay above minimum at sa tinagal ng kso ang salary ko na above minimum ay napag iwanan na . maaari ko po ba na makuha ang kakulangan ng salary ko sa company e panalo naman ako sa last decision sa supreme court. alam naman natin na ang ibang arbiter ay kampi sa malaking company lalo na pag pinag uusapan ay mony claim. salamat po .

    1. Atty. Post author

      Estrelito: I’d really like to respond to your questions but out of delicadeza or respect, considering that you must have counsel or a lawyer who handled your case which you won in court, I suggest that you refer legal questions arising from your case to the lawyer who handled it. Your lawyer is familiar with the circumstances of your case and the full decision of the court; therefore, he or she is the best resource person to consult. I hope you understand.

  24. estrelito n*****

    Dear aty. Christine. maraming salamat po sa inyong response sa akin e mail. medyo masakit po ang aking ulo sa naging decision ng supreme court sa clarification na nai file namin ng dalwang beses at dalwang beses din po itong na denied. hinde po nila sinagot ang mga katanungan na nilagay ng aking lawyer. kagaya ng ma balik ako sa payroll at ang aking salary ay below minimum medyo malaki po ang kakulangan nila sa akin salary. at hinde rin nila sinagot ng maayos ang aking situation ngayon na minimum lang ang aking slary e may CBA ang company, dapat po bang ma upgrade ang aking salary na igaya ang salary ko sa dati kong kasamahan. at di daw ako ako pwedeng itaas ang aking sahod dahil by performance daw . e may CBA po ang company. atty pasensiya na po kayo gusto ko lang poing malinawan ang aking problema na mahigit na 14 years, baka sa sa susunod na mga buwan pa mag decision ang arbiter tungkol sa decision ng supreme court last oct 20. 2010, sa aking kso dahil wala pa ang mga files sa nlrc. maraming salamat po sana po ay agutin ninyo kung tama po ba ang decision ng mga justices sa clarification na na i file namin.
    salamat po

    1. Atty. Post author

      Estrelito: I understand your confusion, and I am sure that your lawyer can fully explain in layman’s terms what the decision of the Supreme Court truly is. Unfortunately, as a lawyer, I am duty-bound to observe the rulings of the Supreme Court and adopt them in my practice, including my responses to legal queries online. I am sure that your lawyer has done a good job in preparing your case for review by the proper courts. In the meantime, you will just have to hope in a favorable outcome while waiting for the final decision. I hope that you’ll soon obtain the best relief in your case. Good luck.

  25. william

    Would like to ask th following questions?

    I am employed as a supervisor fo 9 1/2 years
    Our company does’nt pay holiday and leave benefits.

    Can we avail them ( X) the number of years they are neglecting this?

    Thanks

    1. Atty. Post author

      William: It depends on the company’s policy for supervisory and managerial employees. The Service Incentive Leave and Holiday Pay rules apply generally to rank and file employees and specifically exempt managerial employees and officers or members of a managerial staff. Moreover, assuming you are entitled to these certain amounts by law, the Labor Code provides a three-year period within which to file a claim in labor court for the payment of these benefits. Beyond that time, the claim is barred. I hope this helps.

  26. leslie

    hello atty.. would need your advice..i am an employee for almost 5 years now..then i decided to transfer to a different department since they are needing a guidance counselor..i am a graduate of psychology and on going ma guidance and counseling but not yet a licence..they allowed me to transfer to that department but i was put on probation again and renewable every six months until i will have my licensed..would that be okay and impossible? thanks atty.

    1. Atty. Post author

      Leslie: Requiring you to obtain a license as a condition for your regular employment is valid; otherwise, your employer may be in violation of the Guidance and Counseling Act of 2004. In fact, it may have already been in violation for allowing a non registered person to act as guidance counselor. I hope this helps.

  27. william

    Atty,

    I would like to have a follow up question, i went on leave for eleven days thru email for the first time in 9 1/2 years,since we have no leave form and my mail was not responded. I had an argument with my boss before that. That time the management replaced someone in my position and mandated my team foe new guidelines that i do not object. I am currently reporting since July 25 without any place for my designated position. Can you advise me options in relation with our labor laws, cause i feel that i am next to dismissal or th company is silently forcing me to resign with what is happening. Thanks in advance.

    1. Atty. Post author

      William: I suggest that you follow up your leave with your HR or immediate superior; check company policies as well for stated format and procedure for filing leave of absence. When you say you have been reporting for work lately “without any place for my designated position”, do you mean physical office or place of work? Or the lack of a proper designation? If so, you may have to ask your employer to clarify your status first before making any conclusion about their plans or motives. Underneath your apprehension, you may have to personally reflect on the incidents immediately preceding your observations. Ask yourself if you have commmitted any violations, infractions or failed to meet specific standards set by the company. No need to email me here regarding those as that would entail a very detailed discussion already. But if you feel there are things you need to fix on your end, then work on remedying those issues so as not to give your employer any valid reason to take undesirable action. I hope this helps.

  28. nic

    good morning po attorney,. meron po akong business together with my two friends. ginawa namin itong sole proprietorship instead of partnership so name ng isang friend ko ang nakalagay as owner,. napagkasunduan po namin na pagstart ng company meron kaming sweldo 6,500 per month kahit iba iba ang position namin kasi kaming tatlo naman ang may ari, napagkasunduan din po namin na mag invest kami ng 10,000 each para sa aming share capital but unfortunately pareho kaming tatlo hindi umabot sa amount na yan, after 4 months po nag resign po ako kasi hindi ko na po nagustuhan ang systema ang company or ang strategy na ginagawa ng company, by the way po ang business po namin is marketing , direct selling po ng mga housewares na binibili lang namin sa mga bodega sale, mall at marami pang pinagkukunan namin ng product,. ang hindi ko po nagustuhan is panloloko na ang nangyayari kasi palaging nag hire ng office staff tapos pinagbibinta lang ng products, lahat yan kagustuhan lang ng isang kasama namin or naging owner kung sa papel ang pagbabasihan, kaya nagdecide po akong mag resign., pero hindi lang po yan ang rason marami pa po., ngayon po nag resign na ako hindi na nila binalik sa akin ang share capital ko pati sweldo ko for four months wala akong natanggap., ngayon gusto kong kunin ang pera ko hindi na nila ako kinakausap, ang huling sabi nila sa akin hintayin ko nalang daw ang letter from the attorney, nagtaka po ako kung bakit ganun ang nangyari, ang tanung ko attorney, ano po ba ang dapat kong gawin kasi lumapit na ako sa public attorney para humingi ng tulong hindi naman daw nila concern ang business, ang dami ko ng nilapitan pero walang pwedeng tumulong sa akin. ang advise naman sa akin pumunta daw ako sa private lawyer para mag hain ng demanda ,wala naman akong pera kaya hindi ko na alam kung ano ang gagawin ko. tulungan nyo po ako attorney,,,salamat po.

    1. Atty. Post author

      Nic: You’ll have to separate your claims and file each in the appropriate court. For your share in the capital, if it is less than a hundred thousand pesos, you can file a claim at the small claims court without hiring a lawyer. The forms are fairly straightforward and easy to fill up. You can also ask the Clerk of Court to clarify questions when filling up the claims form. If you were legally an employee of the business, then you can file a claim for unpaid salaries with the Labor Arbiter (DOLE). I hope this helps.

  29. nic

    gud day po attorney. thank you po for the response.., ginawa ko na po yan, kaya lang wala naman pong tumulong sa akin,, ang ginawa nila ngayon nung dalawang friend ko nag punta sila sa private attorney tapos po nagreklamo ipapatawag daw po ako ng attorney kasi hindi daw nila isusuli ang pera ko kasi nag net loss daw kami dahil sa akin, ang sinasabi nilang net loss ay ang sales namin na galing sa pag hire ng aplikante tapos pinagbibinta ng product bago makapasok, hindi naman po lahat ng aplikante gustong e grab yong opportunity dahil ang hirap maghanap ng buyer sa panahon ngayon tpos ang product subrang mahal at makikita lang sa mall na mas mura.yan lang po ang pinagbabasihan ng sales namini, kasi ang ahente namin hindi rin nag tatagal dail nahihirapan silang mag benta ng product dahil sa kamahalan ng presyo……

  30. Michael

    Hi there Atty. This is my scenario. The scenario is mainly about bond in employment and overtime.

    I am employed in a certain company, and I am bonded for 2 years. The bond fee amounts to PHP 100,000. According to this bond, if I did not complete my 2 years service in the company, then I am obliged to pay the bond fee…

    However, during my stay in the company, I found out that the work given to us (the employees) are very overloaded. We always have overtime, and in our opinion the salary given to us is very low compared to what we are doing. We believe that we deserve to receive a higher pay for doing those overloaded tasks. In addition, we cannot balance our work and personal lives on that company due to those overloaded tasks. We are even told to work during weekends, and to work overnight straight after our normal working hours. Actually, me and my girlfriend broke up because I did not have sufficient time to be with her. And this relationship-breaking experience did not only happen to me but also happened to many of my co-workers. There are also many employees who get sick because of the overloaded tasks. The employees’ morale is too low.

    Therefore, I am planning to leave the company, not completing my 2 years bond.

    So here are my questions:

    1.) Is the employment bond legal? I mean, it looks like bond is equatable with force labor because it forces you to work even if you don’t want to work for them anymore. Isn’t it?….. Well, if it is legal, then please explain why do the law-makers make it legal, considering the fact that it looks like a force labor. I am looking for a justified explanation.

    2.) About the bond fee of PHP 100,000, is this legal? If this is legal, then why is it legal? Why pay that much?…. Is there a way for me to avoid paying this bond fee?

    3.) If I notify them for my resignation, together with a 30-day notice period, am I allowed to get out of the company without paying the bond fee?

    Thank you. Sorry for the “why” questions. I just want to understand the reason behind making that law. I am not satisfied with the “what” questions only.

    1. Michael

      Oh, I forgot to ask this question.

      4.) About the overtime, do I have the right to not render overtime if I don’t want to?

      Thank you.

      1. Atty. Post author

        Michael: You may decline to work on overtime except in certain cases provided by the Labor Code such as : (a) when the country is at war or other national or local emergency as declared by Congress or the President of the Phil.; (b) when necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; (c) 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; (d) when the work is necessary to prevent loss or damage to perishable goods; and (e)where the completion or continuation of the work started before the eighth hour and is necessary to prevent serious obstruction or prejudice to the business or operations; (f) when overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent.

    2. Atty. Post author

      Michael: If the bond was in consideration of company sponsored training or expense in an equivalent amount, you may not be compelled against your will to remain in their employment, but you may be obliged to pay the amount of the bond which is usually equivalent to the expenses the company incurred in your behalf. This is a valid condition under the principle of mutuality and voluntariness of contracts.

      1. Michael

        Regarding the expense that the company incurred in my behalf, does my monthly salary included on it?

        Can we consider my monthly salary as the expense that the company paid for my training?

      2. Atty. Post author

        Michael: It depends on the terms of the company sponsorship; usually, they write these down in the bond agreement so you know exactly what are the actual values involved. Ordinarily, if you were on leave during the training, then your monthly salary at the time may not be included. But if you continued receiving your salary while training then it is possible for the employer to include that in the computation. I suggest that you clarify the values and ask relevant questions from your employer before making any decision.

      3. Michael

        Regarding po dun sa mga exceptions on declining for an overtime, what if the company is just lying? For example, what if sinasabi lang nila na kelangan na talagang tapusin yung trabaho pero actually di naman talaga? Ginagawa nila yun to speed up the flow of money in the company at the expense of letting their employees to work overtime everyday..

      4. Atty. Post author

        Michael: Try looking at it from the point of view of the employer– requiring employees to work overtime is COSTLY and NOT A COST EFFECTIVE APPROACH. In some cases, it may actually be cheaper to hire extra employees to take on the extra load than to pay existing employees overtime. This is why overtime work requires prior authorization from management– because there is an extra cost to it. Employees who render overtime work are not paid the same hourly rate but much more than their usual rate, not to mention higher utilities bills for lighting, air conditioner, computer use, etc. I will not be so quick to assume bad faith exists.

  31. Grace

    Good day Atty! I need an advice from you.
    My story goes like this:

    July 27, 2011 hindi po ako nakapasok dahil sa lakas ng ulan at baha po samin, hindi po ako nakatawag sa Company na pinapasukan ko. Aminado po ako na fault ko po dahil I didn’t inform them that I will be absent na po. But July 28, 2011 pumasok po ako at kinausap po ako ng General Manager namin. He even told na may sanction po yung ginawa ko at ok lang naman po na magbigay sila ng disciplinary action dahil may fault ko, at sinabi nya sakin na 1000 pesos at umuo po ako. Pero wala po akong natanggap na memo nung araw na yun, at nakabalik po ako sa pagtuturo. Sa madaling salita po pinyagan po nila ako mag work. Ngunit July 29, 2011 ay di na naman po ako nakapasok at nakatawag sa kanila at natuluyan po ako na na awol dahil sa hiinarass po ako ng aming kapitbahay na umabot s demandahan, after the following week ay di po ako nakatawag sa office namin dahil I am still in state of shock and depression. After a couple of weeks tumawag po ako sa dating company na pinagtatrabahuhan ko po para humingi ng certificate na magpapatunay na na AWOL po ako. Ngunit ang HR po namin ay ayaw akong bgyan ng certificate na magpapatunay na na AWOL ako sa company. Ang dahilan nya kasi AWOL na daw po ako nung July 27 pa, pero ang sabi ko po sa kanya paano po mangyayari na AWOL na ako nung 27 pa at nakapasok pa po ako nung July 28 at nagkaroon pa po ako ng Class. At di na raw sila pwedeng magbigay pa ng anuman. Ang hinihingi ko lang naman po ay certificate na magpapatunay na na AWOL po ako, yung lang po ang hinhinigi ko pero di pa po nila ako mapgbigyan. Sana po matulungan nyo po ako.

    Sincerely.

    Grace P

    1. Atty. Post author

      Grace: While the implementing rules of the Labor Code require employers to issue certificates of employment to terminated employees, many employers do not observe this rule due to technicalities. You can try asking them again citing Section 6, Rule XXIII, Book V, Rules Implementing the Labor Code.

  32. Michael

    Here is another scenario. One of my officemates asked the HR Personnel if he may resign before the end of his bond, without paying the bond fee. The HR Personnel replied, “Yes, you may resign before the end of your bond without paying the bond fee”. So, my officemate filed a resignation letter, then he waited for 30 days… After the 30-days notice period, the HR Personnel suddenly changed his statement. According to him, he made a mistake. He requires my officemate to pay the bond fee, or else, he should continue working until the end of his bond…

    So my question is, what case should my officemate file against the HR Personnel?

    Thank you.

    1. Atty. Post author

      MIchael: Regarding the ‘bond’ you mentioned, it’s hard to tell what case, IF ANY, exists against anyone. The terms of a bond depend on its provisions. I suggest that your friend bring all his papers, including the bond, resignation, company handbook or manual and other documents pertaining to his employment to a lawyer who can assess his situation more closely. I hope this helps.

      1. Michael

        Yup. That is actually what I told him to do…

        However, he doesn’t want to it because he was worrying that the company might not give him his clearance…

        If he did not receive his clearance, then he doesn’t have anything to show for his next employer.

        QUESTION: May dapat ba siyang katakutan?

      2. Atty. Post author

        Michael: Again, it will depend on the terms of his bond although I’m inclined to believe that his next employer may not require him to show clearance from his previous employer, but perhaps a certificate of employment, which he is entitled to.

  33. Michael

    Another question, (not related to bond).

    One of my officemates submitted a resignation letter. After the 30 days notice period, her manager said that they cannot release her yet because she still have work to finish.

    QUESTION:
    Tama ba na idisregard nila yung “last day” ng officemate ko dahil lamang sa may tatapusin pa siyang trabaho? The 30 days period has already passed. From what I know, the purpose of the 30-days period is to let the company adjust from the resignation of the employee. Meaning, they should not complain anymore that the my officemates still have to finish her work since they are already given time to adjust.

    NOTE: Her tasks can be transferred to others.

    1. Atty. Post author

      Michael: The Constitution prohibits involuntary servitude which means that an employee cannot be forced to continue in his/her employment after the effective date of his/her resignation.

  34. Michael

    Another question: What if the employee has done frequent absenteeism but all of it are sick leaves (with approval), can his employer terminate him due to “Habitual Absenteeism”?

    Thank you.

    Sorry for asking too many questions. I just want to know many things about law, especially in labor. Thank you, again.

    1. Atty. Post author

      Michael: Habitual absenteeism may constitute habitual and gross neglect of duty– a just ground for termination. But if the absence is due to illness and accompanied by a medical certificate then termination may be too harsh a penalty.

  35. Michelle

    Hi po. I badly need your advice. I work for a call center here in Philippines and I am planning to resign for nonpayment of sales bonuses that I still haven’t received since I started my employment February 2010. Magdedemanda po ako sa DOLE, but I’m not really sure If I Philippine Labor Laws apply. As I reread my original employment contract, It states there that I work for Australia but I am locally based and I dont pay local taxes.

    What I want done is, to get what is mine. I want to get my sales commission, 13th month pay and back wages as part of my final pay. I’m planning to give them my resignation letter duly notarized by a DOLE attorney to make sure my simple demands are met.

    Any advice would be most appreciated.

    1. Atty. Post author

      Michelle: For as long as you can prove the existence of an employer-employee relationship with the Philippine company, then your case may be filed at the DOLE. There are several things used to test the existence of this relationship, and I advise that you hire a labor lawyer to help you prepare the legal basis of your case. A notarized resignation letter is unusual as notarization in this case does not prove a right to anything. Just remember that your right to file a claim in the Department of Labor presupposes a violation already of some right. You may file a claim for all the amounts constituting your final pay only when these have not been paid. Hope for the best.

  36. Michael

    Hi there Atty. I have a question regarding the 30 days notice period given to a resigning employee. What if within that 30-day period the employee took a one-day vacation leave, will this extend his/her 30 days period into 31 days instead?

    So parang pagnagkasakit siya ng 1-week within that 30 days notice period, so madadagdagan po ba ng 1-week yung 30 days na paghihintay niya for the effectivity date of his/her resignation?

    Thank you.

    1. Atty. Post author

      Michael: Rules governing the use of vacation and sick leave credits are determined by company policy. I suggest that you examine the company’s policy when it comes to resignations, specifically if it allows a resigned employee to utilize unused leave credits in the meantime. If there is no such policy against using unused leave credits, then any approved absence or leave may not automatically extend the 30-day notice. Be sure that your leave of absence is approved or you may be sanctioned for AWOL or absent without leave.

      1. Michael

        I think that the company we are working for doesn’t have any policies regarding utilizing all the remaining unused leave credits before resignation. (I’ll check on this.). But actually, they have a policy saying that the unused leave credits will be converted into cash on April next year…. So, assuming that there is no policy in utilizing the unused leave credits before resignation, does this “absolutely” mean that the employer cannot extend the 30-day notice when an employee uses his/her leaves during the 30-day notice period? (Just for clarification.)

        But what if there is a policy on utilizing the unused leave credits, can we consider the overtime work hours of an employee to compensate his/her leaves during that 30-day period?

        Thank you.

      2. Atty. Post author

        Michael: The matter of using vacation leave credits is a management prerogative– if there is no clear policy regarding its use during the final days of a resigned employee, the best approach is to ASK the employer if you can use it without having to extend your resignation date. Leave applications require approval, so you still need to follow the usual rule regarding obtaining prior approval, whether or not you are resigning. It really is up to the employer whether to allow the employee to go on leave so there is no need to render overtime work just to make up for absences, unless the employee is required to do so for urgent reasons. But from experience, employers often let go of employees who are already on their way out unless the resigned employee occupies a valuable position where pending work may cause business operations to suffer.

  37. concerned

    Dear Atty,

    One of my officemates complaint about my comment on a post made by my agent on facebook, my agent posted what the complainant did to her while inside the elavator (flashed dirty finger at her back and laugh) and I commented on that “she has no friends in the office, she didn’t get the promotion cause she’s stupid” and a lot of comments and like from some of our officemates also, this was done not during working hours.

    My question now is, is this sufficient to terminate us? If they do, can we file a case?

    Thank you
    Concern Employee

    1. Atty. Post author

      Concerned: Libelous statements made against a superior officer may be considered as serious misconduct, which is a ground for termination. The conditions for serious misconduct are: (a) it must be serious; (b) must relate to the performance of the employee’s duties; and (c) must show that the employee has become unfit to continue working for the employer. There is no requirement that the questionable act be made during working hours. The Supreme Court has decided on a similar situation where it upheld the dismissal of an employee who made libelous statements against a superior in an email.

  38. concerned

    Dear Atty,

    Should I think that the case would matter on how the HR or my manager will weigh things? The conditions for misconduct (a) must be serious -is it? (b)must relate to the performance of the employee’s duties-we still assist her concerns in the office, we work professionally (c) must show that the employee has become unfit to continue working for the employer -my performance is good as per the latest appraisal from my boss.

    I need your advice. Thanks.

    I will update since we might have a hearing tomorrow.

    Thanks,
    Concerned

    1. Atty. Post author

      Concerned: Yes, the outcome of any administrative case will depend on the evidence before the disciplinary committee. Evidence will consist of all statements presented, the explanations and how well you are able to justify your actions. The decision to penalize, who to penalize and how heavy a penalty will be, is a management prerogative, that the law allows employers to exercise, almost without court interference, except for it being unreasonable or arbitrary. Good luck on your hearing. Be more careful next time to avoid similar occurrences. When posting things on social networks like Facebook, the guiding principle is: “is it something I can say directly at the person referenced?” If not, then don’t. Because the person being attacked can read it, and it will sting as much as it was said to her face. And reputations are easily tarnished that way, but not as easily repaired. It’s called tact.

  39. Michael

    I have a similar experience with “Concerned”… One of my officemates post something in Facebook about the company he is working for. The exact words he post are: “Anu ba yan! According sa ranking ng companies eh masmataas pa ang ranking ng company natin kesa sa Company B (I cannot say the name) pero masmaganda ang benefits na natatatanggap ng mga employees at masmataas ang sahod ng mga employees ng Company B kesa sa atin!”

    Can we consider this a libelous statement? Take note that all of what he said are true. The ranking is true. The salary differences is true, as well as the benefits differences.

    Can we consider a fact statement as a libelous statement?

    Thank you.

    1. Atty. Post author

      Michael: Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. In the Philippines, truth of a statement is not always a defense. If the statement is true and the purpose is to besmirch the reputation of the company, then libel exists. Please take note that when a libelous statement is the subject of an administrative action in a company, if proven, then it constitutes serious misconduct, which is a ground for dismissal.

  40. che

    I was terminated to my work for just cause reason bcoz of the fraud things that they found out. But before that I tender my resignation last Aug. 11, 2011 and the effective date of my resignation was on Sept. 10, 2011. I gave them 30 days notice but my company said last Aug. 19, 2011 that I can take an early leave so without malice I go home, they also provided a clearance and I submitted all the necessary matters stated in the clearance but last Sept. 2, 2011 they called me to have a meeting with them on Sept. 7, 2011. So I want to them which I thought they will just want to discuss with me my last pay but on that day they interrogate me about the purchasing activities that I did i.e. fraud things about quotations. They gave a letter to explain my side and the deadline was on Sept. 9, 2011. So I consult a lawyer with these matters and I made a written explanations. We went on Sept. 9, 2011 together with my lawyer and they interviewed me again , during that meeting together with their lawyer, HR Manager, Finance Manager and Fraud Investigator from our UK office. My lawyer terminated the meeting because they already showing other matters that is not written in the 1st memo they gave bcoz according to my lawyer questions was already misleading and it’s like we are in the court procedure. I also submitted my explanation letter which accordance with my knowledge. It took 2 weeks from them to response and the results of the investigation that I am terminated because of Fraud, dishonesty and gross misconduct. They don’t also accept my resignation letter for the fact that I thought it was already cleared because I also made my clearance with them.I consult again my lawyer with this and he asked me if I accepted the fact that I am terminated I said yes because I don’t want to file case against them that I am also will lead to financial burdens. They called me again last Sept. 22, 2011 to said that I can claim my last pay. And I asked my lawyer again if he can comes with me during the signing of the quit claim so we went there just last Sept. 23, 2011 to settle and closed the case. But my fear is can they still file damages for me since they already terminated bcoz some of my friends who worked as HR Managers here in the Phils. which according to them once I am terminated they cannot file a civil case or any damages against me. I am so worried after that incident and until now its haunting me I am like paranoid which I already thought of committing suicide. I am only human which I know I committed mistakes but the harrassment they did to me still haunting me now. I saw your webiste that I thank God for this since your specialty is Labor Law issues. I am hoping you could me feedback with this problem of mine. Thank you very much.

    1. Atty. Post author

      Che: Ordinarily, the quit claim is a document which waives the employee’s right to sue the company for amounts that the employee may feel is due to him or her. Since it is prepared by the employer(company), it is usually one-sided and does not offer the same protection against lawsuit to the employee signing it. It really depends on the kind of evidence that your previous employer may have against you, because in court, a case is decided on the basis of the sufficiency of evidence presented. The weight of evidence required differs according to the type of case filed– if it’s a criminal case for estafa or fraud, then your previous employer will have to prove their case beyond a reasonable doubt (something that is not always easy to prove in court). If it’s a civil case, then the standard is “preponderance of evidence” (meaning, the one suing must have heavier and more convincing evidence of his side of the story). It will also depend on the amount or extent of damage involved– because the value to be recovered is often weighed against how much time, money and effort will be used to recover it from the resigned or terminated employee. In your hour of desperation, turn to prayer. Resolve to learn from this difficult experience and do things differently in the future. Life always gives us second chances no matter how badly we “screw” things up. I hope this really helps. Email any time.

  41. che

    Thank you for you response. But according to some of my friends who working as HR Manager for them once it’s terminated they usually closed the case. Is this usual in the Philippines that once the employee is terminated the case is closed? Thank you also for the word of wisdom I am just so desperate when I said that bcoz of negative thoughts.

    1. Atty. Post author

      Che: I can’t exactly say what is usual if your friends think otherwise. It is really up to the employer to decide based on the circumstances because my experience as legal counsel is otherwise. Some employers often pursue legal action especially when money is concerned, in order to send a strong message to the remaining employees that the company does not take dishonesty or fraud lightly. In other cases, the amount involved is also a major factor in pursuing a case, particularly at a time when company funds are greatly needed. For them, restoring what was lost, in the form of cash, is important because cash flow is the lifeblood of any company. But then again, the ultimate decision rests with the owners or top management. Just hope that your HR friends are right and that your former employer decides to be compassionate in your case and let you be.

  42. che

    Thank for the reply. But if they will charge a civil case against me can I still file a case against them ? and Can be the Quitclaim will be voided?

    1. Atty. Post author

      Che: It depends on the wordings of the Quitclaim– if it contains any statement that the quitclaim agreement also prevents the company from suing a resigned or terminated employee by entering into that agreement.

  43. che

    what if the quitclaim is usually one sided in favor of the employer?

    1. Atty. Post author

      Che: Then in that case, I doubt if the company included a waiver of its right to sue you for acts that may constitute a crime, or to recover other amounts only determined after your termination. Let’s just hope that the amount or damage involved is too small for the company to pursue in court.

  44. yet

    Atty,
    I am working in one school as a head. Allow me to speak in tagalog for me to clearly explain my situation.
    Na hire po sa kompanya 2005 di na po ito kumikita at napakalaki ng utang sa building. Nagawa ko po itong ilipat sa mas mura from 850,000 to 250,000 a month. Napadami ko po ang mga estudyante mula sa 273 hanggang 500 plus sa kasalukuyan. Mula 2005-hanggang ngayon ganun ang delivery ko o achievement sa companya. Ang nangyari po may sumira sa akin nag padding daw po ako ng alter sa mga resibo. Binigyan ako ng Preventive suspension para magpaliwanag wala po akong right pumasok sa office ko. lahat kailangan ko pong iwan pati personal kung gamit. Ako po ay kanilang pinatawag dala ko po angmga katibayan na di po ako nagpapalit ng mga resibo o nag aalter na sinasabi nila. Pumunta ang auditor namin sa supplier ipinakita sa kanila ang mga resibo na kapareho ang pirma..pati mga nakalagay. Inamin naman po ng supplier na sa kanila po iyon pero di rin po sila naniwala. May sworn statement po ako ng mga supplier. Pinaliwanag ko po sa kanila nun ako po ay kanilang imbestigahan. Sa katapusan ako po ay kanilang tinanggal.

    Ang tanong ko po pwede ko po bang sampahan ng kaso yun nag akusa sa akin sa court? Ano po ba ang kasong pwede kong isampa…?
    Gusto ko pong maparusahan yun taong nag akusa sa akin..

    kasi po nakasampa na po ako ng illegal dismissal sa NLRC, hinihingi ko rin po yun kaukulang bayad nila sa aking MAGNACARTA 9710 dahil di po nila ito binigay. Single parent po ako at may kapansanan pa ang aking isang anak. Pwede ko rin po bang isama sa case ko yun availment ng Single Parent? May increase po ako ng July 15 pero naka preventive suspension na po ako ng July 4… makukuha ko pa po ba yun kasi retro po yun. May retention incentives din po ako ngayon May ..kasi po na hit ko po yun REtention.. Meron din po akong inaaplly sa company ang support education allowances sa pag aaral ng anak ko na approve po yun sana makukuha ko din po kaya yun?di rin po umabot kaya yun anak ko di na po nagpatuloy sa school dahil wala na po akong work. Marami pong salamat…

    1. Atty. Post author

      Yet: You can include all the other claims you say that you are entitled to at the NLRC. The complaint form is a standard one that you simply fill out and state the reliefs you wish to obtain, including the denied solo parent leave. Just include all the other amounts that you feel you are entitled to and wait for the other party to prove that you are entitled to any of them. You may obtain some or all of the reliefs depending on how you and your previous employer presents its case. In many cases, the lawyer of the employer may extend an offer to compromise the case in order to end the litigation. Since you mentioned that you already filed a case in the NLRC, I strongly suggest that you get a lawyer to represent you in the proceedings. The role of the lawyer is critical when it is time to file your position paper, assuming the case is not settled amicably.

  45. concerned

    Hi Atty,

    Nakausap ko na yung HR namin about my case, well bibigyan palang me ng notice to explain, yung sa comment ko sa post ng agent ko sa fb ” kaya walang friends and even genuien friends, di pa napromote pano tanga” defamatory daw po, I asked the HR if hindi ba totoo yung sinabi ko? sabi nila totoo naman, but snce I have a position sa office dapat daw be careful, should I just accept the suspension if ever? Thanks

    1. Atty. Post author

      Concerned: For as long as your employer follows the process for discipline and imposes the appropriate sanction (check with the manual or code of conduct) and you were given the opportunity to explain, your best option is to explain as best as you can, apologize and explain that you meant no harm to anyone but merely expressed an opinion, and accept the natural consequence of your action. In my personal opinion, the statement sounds defamatory even if true.

  46. Michael

    Hi there again Atty.

    Good day.

    In passing a resignation letter, or medical certificate, should the resigning employee always have 2 copies of it. One is for the employer, and one is for the employee, and both copies should be signed?

    Nag-aalala lang ako na baka kasi sa last day ng employee eh bigla nilang sabihin na di pa siya pwedeng irelease kasi wala naman silang pinirmahan na resignation letter ni employee.

    Please advice. Thank you.

    1. Atty. Post author

      Michael: It’s always good practice to keep one copy with proof that the employer or recipient has received it. This applies to any type of important communication such as resignation, written explanation in response to show-cause memo, etc. Anyway, an employee is often required to undergo the usual clearance process before the last day or release of the final pay. If fully cleared, I don’t see why the employer will object to the departure of the employee. I hope this helps.

      1. Michael

        I mean, baka lang kasi sa last day ni employee eh biglang sabihin ng HR, “Ay, wala naman kaming nareceive na resignation letter mo so di ka pa resigned.”

        Pwede kasi sila magkunwari na wala silang nareceive na letter kasi alam nilang walang recepient copy si employee. May mga employers kasi na gumagawa ng way para maextend yung last day ng employee nila para if ever na may lilipatang ibang company si employee eh mababadtrip yung lilipatan niya dahil nauusog yung dapat na start day…

        Iisipin tuloy ng next employer na di talaga interested si employee na maging part ng company nila.

        Yun lang… Anyway, ang inaalala ko kasi, may laban ba ang resigning employee if ever na ganunin siya ng previous employer niya?

      2. Atty. Post author

        Michael: This is the age of computers and Internet. I’m sure the employee had the common sense to save the letter as a document file or perhaps transmitted the letter via email as most people do these days. If not, I’m also certain that HR managers are professional enough to acknowledge resignations and not resort to underhanded tactics just to hassle someone who is leaving the company. If they do, then really, while the law requires an employee to provide notice, no one can be compelled to work for someone against his will. But it makes practical sense to keep file copies of important communications such as resignation letters. 🙂

  47. YAS

    good day atty.

    my husband is a salesman and decided to resign upon receiving gross insults from his manager. his resignation letter was open-dated upon advice by the said manager.

    he was given two weeks for the conduct of the audit and upon its completion, it was found out that he incurred shortages, along with fictitious and padded invoices.

    his enraged manager now decides to cancel his resignation and declared termination. does the manager have the right to do this? and also, i need your opinion regarding the open-dated resignation letter.

    thanks so much in advance.

    1. Atty. Post author

      YAS: sent a reply via email. Please check.

  48. eric

    atty. got only two questions:

    1. is there any minimum/maximum timeframe (ie. 2 months) to process the back pay of a resigned employee?

    2, what grounds if there’s any that an employer can deny or hold the employees back pay? which benefits can an employer not give to the employee (ie 13th month pay, unused leave credits)?

    1. Atty. Post author

      Eric: There is no legally set rule but a reasonable period is justified; otherwise, you can demand for the release of your last pay and turn to the Department of Labor for your claim of unpaid wages if they still refuse to pay you. An employee who has been cleared of any liability due to the employer may be entitled to the release of the final pay. This includes legal benefits such as pro-rated 13th month pay. Unavailed paternity leave and solo parents leave are not converted to cash upon termination. You will have to refer to existing company policy regarding conversions. Not all unused vacation/sick leave credits are subject to conversion at the end of your employment. If it is clearly provided, then that, too, should form part of the computation of final pay.

  49. Michael

    Good day Atty.

    I have asked our HR personnel regarding their policy in 30-days notice period for resignation. Here, this is according to their Company Handbook:

    ———————————-
    30-days Notice

    The requisite 30-days notice period is that of continuous service during which the employee may not take leave though he might still have surplus credits. Any surplus leave credits are paid as part of an employee’s final pay from the Company.

    In case an employee fails to comply with the 30-day notice requirement, he is then considered Absent Without Leave (AWOL) for the deficiency, and the corresponding rules and penalties apply.

    In the case of illness necessitating that the employee takes sick leave, the Company may require that the previously approved last day of work be extended corresponding to the duration of the sick leave taken.
    ———————————–

    So my question is, are all the things written there legal?

    Actually this is what happened….. My 2 years bond has already ended last September 7, that’s why I may now take my resignation… So, on September 26, I submitted a resignation letter indicating there that I am giving them 30 days notice period, and my last day should be this coming October 26….

    During this period, I was absent for 8 working days due to illness. When I came back to office, I gave them my medical certificate. However, they told me that they will only accept 2 days as sick leaves and the other 6 days are AWOL. This is because I have only informed them twice that I cannot go to work, while the other 6 days I did not bother to inform them because I thought it was alright to inform them only at the start of my sickness and not on the following days of illness….

    Aside from this, they also decided to extended my last day equivalent to the days that I was absent. So the extension is 8 days, according to them, because I was absent for 8 working days. Thus, my last day will now be on November 3.

    QUESTIONS:

    1.) Is it true that the 30-days notice period should be continuous? What does “continuous” actually mean on that policy? Should I be working on weekends and holidays straight in 1 month? I will not rest in weekends nor in holidays because it needs to be “continuous service” according to their policy?…. Is it really legal to extend the last day of a resigning employee just because the employee got sick?

    2.) On my past posts, you said that employers may extend the 30-days period if the resigning employee still have leave credits… I don’t actually understand this. I mean, I still have 3 days remaining sick leaves and 15 days remaining vacation leaves. So, does it mean that they can extend me for an additional of 18 days????

    Oh no… Hinihintay na ako ng lilipatan kong company… If they will extend me for an additional of 18 days, then I’m doomed… What shall I do, Atty.?

    Thank you for the advice.

    1. Atty. Post author

      Michael: Your company poilcy is self explanatory. You are required to provide a 30-day advance notice of your resignation. In the meantime, you will not be allowed to use your unused leave credits; the balance of your leave credits will be converted to cash and included in the computation of your final pay. If you go on sick leave during the original 30-day period, your last day of service MAY be extended for an additional period equivalent to the number of days you were absent without leave (which is 8 days as stated in your query). Going further, if you no longer report for work after your original effective date, your employer MAY consider you as AWOL and initiate administrative proceedings against you and possibly hint at termination. But from my readings of Supreme Court rulings, dismissal may be considered as too harsh a penalty and you may just have to face deductions for the unauthorized absences (not so relevant to you if you’re on your way out anyway).

      Michael, please review all my comments to your messages here– nowhere did I say that the employer may extend your employment for the equivalent period of your unused leave credits. It sounds absurd. For the benefit of other readers: remember that companies have internal rules regulating the conduct of their employees including resignation and use of leave credits. The courts will ordinarily not disturb these internal rules as part of management prerogative (of course, there are exceptions and the rules have to be reasonable). Always make it a habit to READ FIRST before making any important decisions like resigning and being absent in order to avoid unfortunate situations. Best of luck in your new employment, and please read all your employment documents and rules to guide you during your next employment.

  50. angel

    Hi Atty, I was promoted/ accepted for internship for a supervisory role last May. My first 3 months was spent with my 1st manager, after which, re-organizations in the company happened, I was given another Boss to report to. After spending 1 and a half months with this new boss, he demoted/ reverted me back again to a rank and file position stating the deliverables I wasn’t able to meet as a ground for my ‘demotion’. Me and my boss had only 2 meetings in that 1 and a half month period that we are together, 1st was the expectations setting (general, non-specific), and the 2nd meeting was when he already pointed out all my lapses and as a result ,my demotion. I wasn’t given any feedback prior, a verbal warning, even a memo, stating their expectations that I must meet. Also, the reasons for my demotion were also one sided. I have explanations why that is my performance during our last meeting, but my boss won’t hear me out. That’s the same day that he broke the news that they already decided to revert/ demote me. I’d like to file a complaint because I feel the decision didn’t go through due process, no feedbacking prior, no notice, and I wasn’t even involved/ asked of my reasons/ my side prior to them coming up with the final decision to revert/ demote me. Do I have the chance to get a fair assessment for this? Thank you.

    1. Atty. Post author

      Angel: I’ll send a reply directly through your email. Please check in a while.

  51. carmelle

    Dear Atty, my older sister had a baby and now she wants me to have legal custody of her child. Im 22 yrs old single. And I lived in Davao City and she’s in General Santos City. Is that possible for her to go to the attorney there and allow her to write my name on that paper so that I will have the legal custody? Please help me attorney, because actually i am the one supporting her child. And im glad she told me that we need to have legal custody under my name. We just want the child to have better future. Thanks in advance. And may God bless you for all those helpful advice..

    1. Atty. Post author

      Carmelle: I admire you for taking on the challenge of raising someone else’s child. But the proper approach is to adopt her baby to avoid future legal problems with custody. A mere peace of paper assigning full custody to you is not a legally binding document should your sister wish to take her baby back or as against the biological father who may surface one day. I hope this helps.

  52. xem

    Hi Atty.,

    I would like to ask if an employee was terminated with a cause is he/she can get other benefits like company initiated such as sick leave and vacation leave?

    Thank you.

    1. Atty. Post author

      Xem: An employee terminated for just cause is still entitled to all benefits which accrued before termination, which is why there is a “final pay” computation even after an employee has been fired. I hope this helps.

  53. xem

    thank you atty!🙂 just a follow up question even if it is stated in a company policy that terminated employee with just cause can no longer get company initiated benefits? Is it a violation on labor law?

    1. Atty. Post author

      Xem: No,that is not a violation of the Labor Code and is the exception to the general rule (that employee benefits accrued at the time of termination must be paid.).

  54. Liaa

    Hi Attorney,
    i’m working in the Call Center industry and right now we’re having challenges with the account/project. I’ve been with this account for more than 4 years. The company reduced our workdays from 5 days to 2-3 days only. They’ve let us signed memo for the reduced work hours (no number of hours specified) and a week after we signed it, we got the plotted scheduled that we have these 2-3 days of work and they said that the situation might worsen. Is this legal? Also, our manager is offering us options to transfer to another account but with a lower basic pay. If we do not go with the offer, we might be considered as “floating” employees meaning we are still employees of the company but we do not get paid. My question is, to what extent the employer can reduce the number work hours and in a legal point of view what can we do or demand if we refused to be transferred to another account?

    thanks.

    1. Atty. Post author

      Liaa: It is only legal if the employees concerned have voluntarily signed an agreement to that effect, and that the company informs the Department of Labor of this agreement at least 30 days before it takes effect. Putting employees on floating status is also allowed only under certain conditions, first, that the floating or suspended employment is only temporary and not more than 6 months and second, that the Department of Labor is informed of this. A transfer that is tantamount to a demotion may be legally questioned in the Dept of Labor as constructive dismissal.

      Liaa, beyond the legal aspects, perhaps the more serious thing to consider is the financial viability of the business. It sounds like it may not be able to sustain its employees, regardless of their compliance with legal standards. It’s one thing to insist on your rights and another to enforce them against a bleeding company. It’s like squeezing blood from a rock. Maybe it’s time to consider other employment options and try to obtain a separation or retirement package from your current employer.

      I hope this helps.

      1. liaa

        Hi Atty,

        Thanks for your immediate answer.

        Some employees signed for the Reduced Worked Hour Agreement but it was put in effect a week after the agreement was signed. This means the company violated what’s in the Labor Code, right? The management even said that even a employee does not sign the agreement, they will just ask someone to witness that the employee has been informed about it. I don’t think this is fair at all. The management also said that redundancy is not an option. Do we have legal rights to ask for redundancy in such condition?

        Thanks again!

        Liaa

      2. Atty. Post author

        Liaa: The decision to terminate employees due to redundancy is the employer’s right. You can suggest that they terminate you instead of keeping you all in suspense mode but you can’t compel them to do so. Please note that a work suspension of more than 6 months may be considered as termination due to closure of business for which you may be entitled to separation pay depending on the actual circumstances of the company. On the side agreement for the reduced working hours, make it a point not to put your signature on written documents or contracts requiring your consent. Obviously, it’s called an agreement only when the party expresses his/her consent by signing it. Maybe you’d like to check with the Department of Labor if they have already received notice of the Reduced Worked Hour Agreement you are referring to.

  55. xem

    hi Atty,

    May tanong po ako kung isang empleyado po ba hindi pumasok nung araw bago mag regular holiday pero pumasok nung mismong araw ng regular holiday hindi pa rin ba sya entitled sa double pay? sabi kasi nung boss hindi daw xa double pay kahit pumasok siya nung mismong regular holiday..

    Thanks.

    1. Atty. Post author

      Xem: He should still be entitled to holiday pay.

  56. Ferico M

    Hi Atty,

    Legal po ba talaga yung CTO (compulsary time out) na 6 months kung saan di ka pwede mag work sa ibang kumpanya dahil mawawala yung benefits mo if ginawa mo yun. 6months kang walang schedule, walang sahod lalo pag ubos na ang mga leave credits mo. I am a solo parent with 1 baby girl. Ang rason na ibinigay nila eh dahil nag cut down daw ng heads ang kumpanya. Sobrang kailangan ko po ng tulong ninyo. Salamat po.

    1. Atty. Post author

      Ferico: As a rule, the employer is allowed to temporarily suspend its operations due to drastic cuts in workload or client requirements, and in the meantime, the employer is not required to pay any salary to the employee. As a result, the employee is expected to wait until the employer requires him/her to report for work. The maximum period for keeping an employee temporarily suspended from working due to business reasons is 6 months. Beyond that, the employee is entitled to termination pay already. True, there is a Supreme Court case which stated in passing that the employee who applied and worked for another employer in the meantime was deemed to have terminated his ties with the previous employer who suspended its operations. But I would like to ask about your statement “ang rason na ibinigay nila eh dahil nag cut down daw ng heads ang kumpanya.” This sounds like a retrenchment, in which case, if the suspension is a disguised retrenchment, then you may already be illegally dismissed by calling it a suspension. I suggest that you ask your employer what their plans are, whether you are going to resume work after 6 months or not. It won’t hurt to look around for another job, and if there are good opportunities, then maybe it would be better to sever your ties with your employer who is experiencing business difficulties. In your situation, you are better off being employed in another company which offers more job stability.

  57. Bryan Ochoa

    Hi Atty,

    I work for a Trading company as a Area Sales Manager. I’m on a 6 months Probationary Contract and currently on my 2nd month. I had my share of absences due to sickness however they were all valid and approved by my superiors. Yesterday Nov 28, 2011 to my surprise the Asst General Manager called me to a small room. The she told me to choose between Termination or Resignation, I asked her what were the grounds? she only said “attendance”. I said I already spoke to my superiors and they even asked for a commitment letter saying I will not absent my self and if it happens again i know the consequences. However after mentioning this to her, she has no idea of what I was talking about. This only means that they do not have any proper communication. This being the case I began to question the validity of the termination and said I will not sign anything because I did not have any due process or even a warning. Then the Asst General Manager told I will be talking with the company Lawyer, again I was surprised that I will be talking to a lawyer. Needless to say I spoke to the Lawyer and the Lawyer tried to persuade me to sign the resignation papers and avoid any hassle. He even mentioned that they already won a lot of cases regarding illegal termination. I said I will not sign any documents because I was not treated fairly. After our conversation I returned company items that were issued to me, I haven’t even finished doing so they told me to leave the premises at ounce. So I was really embarrassed on how they treated me given that I bare the Title of a Manager. My contract states that I will be evaluated but I never got to be evaluated. They did not provide any explanation why they are terminating me they just did.

    I’m now seeking assistance with regard to this issue, since I want to file a case against that company.

    1. Atty. Post author

      Bryan: On the basis of your story here, it would seem that you may have a cause of action against your employer. I suggest that you approach a labor lawyer already who can take your case up at the Dept. of Labor.

  58. dj

    hi atty.,
    ask lang po about our rights. i know someone close, working in a company. he is new to this job, one of his superior has this ground rule of giving extra time to work without pay para po sa mga late, so that is 1 hour of extra work for each late. hindi po ito sinunod ng 1 employee so he was called to a one on one meeting asking why, he told the superior that it is not fair since what he is trying to impose is against the labor code.sinasabi pa nga po na insubordination daw po ang ginagwa nya pero sinabi nya po na, “sir lahat po ng pinagagawa nyo sa shift ko ginagawa ko, outside working hours po ang gusto nyong ipagawa na mag extra cover outside shift w/o pay at itatanong ko po sa dole yan kung kailangan”, yung superior of course got annoyed, now he’s worried na pag initan sya, nalaman po nya na isinumbong ng superior na ito sa manager nila at sinasabi nito na bakit kailangan pa paubutin sa DOLE at bakit daw po ipinagsasabi nya sa ibang co-worker ang napag usapan nila na wala na syang extra cover outside shift, hindi nya po ginawa yun. di pa po nya alam ano mangyayari sa miting nila today but worried po kami na baka i-single out sya ng mga superiors dahil sa ginawa nya or worse i-terminate sya or hindi i-regular. may katuwiran po ba sya sa ginawa nya, di rin po kasi namin sure. medyo arrogant din po kasi ang superior nya na iyon na nag quote pa po na”life is unfair deal with it” w/c is very unlikely dahil he is respected as senior who will be fair to all employees. thanks po sana po mapayuhan nyo kami.

    1. Atty. Post author

      DJ: Termination for just cause such as insubordination is not an instant process and will require the observance of legal procedures which is designed to give the employee a chance to explain or defend himself. Any termination which does not comply with the legal rules may be cause for complaint in the Dept. of Labor. On the practice of requiring employees to render an additional hour of work to offset any lateness or tardiness, the labor code expressly prohibits the offsetting of undertime with overtime. The proper action would have been for the employer to deduct the corresponding lateness from the employee’s salary, and not require the employee to render overtime without pay. I hope this helps.

  59. john john

    may karapatan po ba ang isang human resource supervisor na magdismiss ng employee gayung meron pa siyang immediate heads like division chief and department manager?

    1. Atty. Post author

      JohnJohn: the authority to fire may be delegated to any authorized or responsible officer acting on behalf of the company. What’s more important is the presence of just cause/authorized cause, and observance of procedures before the termination takes effect.

  60. rob

    Proper procedure was followed. Written warning and suspension. And then, I had Administrative Hearing last November 28 because I failed a metric in our account. They asked me to provide Show Cause Letter and Medical Certificate within the week stating if I am still fit to work or not.

    I got Medical Certificate from a doctor which referred me to a Urologist. I put that in my files on my Team Captain’s folder together with the show cause letter I made on December 2.

    It took a while before I visited a Urologist because of his availability. I had check up last December 15 and was asked to undergo several laboratory tests. He also asked me to monitor urine per minute for 3 days.

    I was on leave the following week. I went to back to work today, December 28 and was asked by my Operations Manager to sign Letter of Discontinuance/Termination. I didn’t sign it because it states that I didn’t provide Show Cause Letter and Medical Certificate. I went to my Team Captain’s table and searched for the documents I need but I only saw the Medical Certificate which I handed to her. She blamed me for it.

    What should I do? Is this VALID TERMINATION? I need help. Please response immediately.

    1. Atty. Post author

      Rob: If your medical certificate is favorable to you– i.e. it states that you are not suffering from an incurable disease or one that may not be cured in 6 months even with treatment, then it would seem that the termination is without just cause. But please consult a labor lawyer who can view all your documents/papers relating to your situation first because there are other details that must be considered before coming to a conclusion and recommendation of the appropriate legal steps to be taken. If your lawyer, after viewing all your documents, is of the opinion that your termination was legal, then he/she may file the appropriate complaint in the Dept. of Labor for you. I hope this helps.

  61. athan

    Hi! Atty.

    Good Day!

    I have some question po. I submit my resignation letter and it was accepted. I need to tender for 30 days and im willing to do it.
    But suddenly, Absent po ako ng one day! and the HR issued me an AWOL. pwede bo pa yun kahit resigned na ako?

    1. Atty. Post author

      Athan: Yes, your employer may still discipline you for offenses committed during your final days at work. You may even be terminated before the effective date of your resignation because while you have submitted your letter of resignation, you are still an employee until your last day at work.

  62. athan

    Hi Atty,
    If terminated po ba? do i need to make some turnover para sa kapalit ko or pwede na hindi. And if ever i will not do the turnover may habol paba sila sa akin?

    1. Atty. Post author

      Athan: Yes, all employees who are leaving the company must return all properties belonging to the Company, which will include documents, tools and equipment assigned to you during your employment. I suggest that you complete your turnover in a peaceful manner as a sign of professionalism. Prospective employers may ask around about you from your previous employers and learn about your refusal or failure to complete a turnover.

  63. Maritoni

    Hi Atty!

    I submitted a letter of resignation stating my effectivity date of January 23 but my boss extended it to January 30, 2012 and I consented. I am not a regular employee yet, I am still under probationary period and I have only been in the company for 3 months.
    As soon as I submitted my letter, I have read job openings for my position and others that very same week.
    Anyway, my boss is now telling me to send leave forms for her to sign. I submitted leave forms prior to my absences before. Should I also submit those forms retrospectively, absences which were due to emergencies? Also, she was notified of these absences. I was only planning to submit my leave forms as soon as I get back to work. Someone told me that my boss would probably substantiate her need to find a replacement for me that is why I am hesitant to obey her. I have been a very efficient worker, having accomplished so many things in the short time that I am employed. I feel that she wants to make my life miserable until I resign.
    What should I do?

    Thank you very much for your kind attention.

    1. Atty. Post author

      Maritoni: Procedures for availing of leave credits and leave notifications are usually found in company policies or the employee’s handbook/company manual. I suggest that you look them up and comply with them, to avoid administrative sanctions. Ordinarily, all absences at work– whether on vacation, sick leave or emergency leave, are subject to rules requiring notifications, prior, if a vacation leave, or upon the return of the employee to work, if an emergency or sick leave. Without the necessary leave forms, you may be considered AWOL. so, I suggest that you comply with the instruction to file the appropriate leave forms for your absences. I hope this helps.

  64. samantha

    hi nagtrabaho po kami pero wla po kaming contract so evrytime po na nagtatanong kami tungkol sa contract ang palagi nilang sagot eh mg antay lang kasi rereviewhin pa daw po ng kanayang atty. ngsimula po kami ng training ng july1 at umalis kami ng nov. ng aming malaman na meron ng inaapoint sa aming trabaho at wag daw ipapaalam sa amin na tatangalin na kmi so nasaktan kmi at umalis ng nov29. ngaun po gus2 nmin malaman kung ilegible kami sa 13th month pay? At gusto daw na kasuhan kami ng abandon of employment anu po ang pede namin gawin?

    1. Atty. Post author

      Samantha: Even without a formal contract of employment, your service since the time you started working and payslips are proof of your employment arrangement with your employer. Unfortunately, you may have to face administrative sanctions for being absent without leave since Nov. 29. If you had no intention to return to work, then the case may be of abandonment. The proper thing to do in your case was to resign in order to avoid termination for just cause. Anyway, you may still send your resignation letter in order for your employer to process your final pay, which should include a pro-rated 13th month pay since you worked for more than 1 month with them. I hope this helps.

  65. r. doe

    atty,

    good day po. Nag meeting na po kami regarding sa under payment ng 13th month pay namin, still sabi po ng management wait lang po, no specific date when ibibigay yung half po. May nabasa po me article na nagiimbestiga daw po ang DOLE sa mga company hindi nagbigay at underpayment ng 13th month, Gusto ko po malalam kung may telephone number po ba kayo ng DOLE office na kung saan sakop ang aming company, **********. located at ********, Alabang-Zapote Rd. Muntinlupa City. gusto ko po magreport sa DOLE office para po ma imbestigahan na mga kakulangan ng company namin, kung pwede po sana atty maitago ang identity, baka po kasi mapag initan me sa office,

    maraming salamat po

    1. Webmaster Post author

      Replied through email. Pls. check.

  66. samantha

    naintindihan ko po me tanong pa po ako anu po ba ang pede nilang ikaso sa amin? umalis po kami dahil me malaking dahilan katulad ng pag amin sa amin na me kapalit na kami sa aming position. At meron din po kami proof dun sa mga text ng amo nmin ” sorry guys it wasnt my plan to replaced to you” sana po mag bigyan nyo po kami ulit ng advice. thanks

    1. Atty. Post author

      Samantha: Under the situation, the right thing to do was for you to resign given the feeling of rejection you felt for your employer having found other employees suitable for the job– not to abandon your work without any word about your return or departure. Under the situation, your employer may send a show-cause notice for you to explain why you should not be terminated for abandonment of work or any other just cause under the labor code or employee code of conduct.

  67. Jachem

    Good evening po! Nagstart po ako magwork sa isang BPO company sa province namin last January 2010. Yung una ko pong contract is contractual para sa account na yun tapos nalipat ako sa isa pang account May 2010 and pumirma ulit ako ng contract as probationary pero same company lang po. Nagstay po ako dun sa company na yun hanggang November 2010 so from January 2010 hanggang November 2010 yung pagstay ko sa company na yon. Pumirma na po kami ng regularization ng July 2010 kaso po binawi ng HR manager kasi in error daw yung regularization namin ng July. Tama po ba siya? Sabi nya samin na ng pagpirma po namin ng regularization contract is November. Yan po una kong concern. Yung isa po tungkol sa back pay, November 2010 po ako nagresign, inayos ko na po yung clearance ko mga ilang araw matapos ang last day ko ng trabaho. Nag-follow-up naman ako sa HR regularly pero ang sabi sakin ng HR personnel okay na daw yung clearance ko tapos hintayin ko na lang daw na itext nila ako kung okay na yung back pay. So naghintay po ako hanggang sa lumipat ako ng company sa Manila. So nagstay na po ako sa Manila ng matagal. Then umuwi po ulit ako ng September 2011 sa province namin. Pumunta po ako ng HR para po itanong yung tungkol sa back pay ko dahil ang tagal na wala pa din akong nakukuhang info. Nalaman ko po na wala daw listahan ng mga nag clearance ng November 2010. SO pumayag po akong ulitin na lang yung clearance ko kasi parang naghintay lang ako sa wala. Sabi din nila maghintay ulit ako ng 2-3 months. 2 months na po ngayong January 2012 kaso wala pa din. Ano po ba dapat kong gawin? Maraming salamat po.

    1. Atty. Post author

      Jachem: You may send your previous employer (call the attention of the HR manager) regarding your final pay, restating your starting and ending dates and the fact that even after a year, it remains unpaid. Make 2 copies, leave 1 with the company and have another one signed as “received” by the HR manager. Hopefully, this will facilitate the immediate release of your final pay.

      1. Jachem

        Thanks for the advice! Have a good day po!

  68. Buub

    Good day Atty, I have been with my company for 10 years now and until now we have yet to draft a retirement plan for employees. I’m still in my mid 30’s and I want to transfer to a new company but we do not have a CBA or any rule on retirement. Then i saw this in the labor code…

    “In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year.”

    The only problem is this is only for employees 60 and above. Is there any provision to have a retirement package even if you’re below 60?

    1. Atty. Post author

      Buub: Legal retirement age is not earlier than 60. Any retirement before that age must be provided in a separate agreement and voluntarily executed between the employer and the employee concerned.

  69. Joy

    Hi Attorney,
    Please help! Meron ako similar case although hindi pa naman umabot sa dismissal.
    Kinausap po ako ng immediate ko regarding my absence a few weeks ago ang nangyari kase e ngpaalam ako baka hindi mkapasok dahil masama pakiramdam ko pro sisikapin ko pumasok kung kakayanin. Taga probinsya po ako at ngrerenta ng unit sa maynila dahil dun ang kumpanya pinapasukan ko. Sinubukan ko po pumasok at ngbyahe parin pero hindi ko talaga kaya kaya dumerecho ako sa clinic sa opisina at nghanap ng doctor agad pero wala doctor kaya umalis nalang ako agad. Yun nga lang e nkpg log in ako sa attendance tracker dahil nakasanayan na yon na pgpasok e ngllogin. Pero dahil umuwi ako d nko nkpglogout. Hindi ko naman knclaim na present ako non dahil ngpaalam naman ako pero ngsimula mgimbestiga immediate ko at nung kinausap ako e hndi dw nla ako nahanap sa camera. Hindi ko alam kung relevant ba na hinanap ako sa surveillance e hindi ko naman kinakatwa wala ako ng araw na yon. Wala pa naman kaso sinasampa sakin kahit dko maintindihan ano ikakaso nila pero ngsumite nko ng resignation na immediate irrevocable dahil hindi ako natuwa sa pgkwestyon nila. Hindi nko komportable sa nangyari at napansin ko narin ang pagmata ng mga gwarda sakin. Bawat galaw ko e sinusundan na nila. Tanong ko po e ano ho ba makakaso nila sakin non at pwede ba ako mgimmediate resign na dahil may conflict na dahil sa ginawa nila pagdududa sakin at d nko mkagalaw ng maayos? May maikakaso po ba ako sa kanila na parang maliciously planting evidence kase parang nghahanap nalang sila ibubutas sakin?Wala naman ho ako maisip kase na ginawa ko mali.

    1. Atty. Post author

      Joy: It’s hard to say what offense they may charge you with administratively because each company may have different types and degrees of offenses. But based on your narration, it may appear to them that you falsified your attendance records by logging in on the day that you did not work. Sending a letter of resignation may or may not stop the administrative charge. If they accepted your resignation effective immediately without sending you a termination notice, then you may no longer have to worry about being dismissed from work. I don’t see how there is as you say “maliciously planting evidence” in the situation you mentioned when, on the contrary, you clearly violated attendance rules at the time by not informing them of your absence and by not logging out as required. My opinion is based only on the details you mentioned and may change significantly when the actual facts turn out to be different. I hope this helps.

  70. Yana

    Hi,

    I hope you can give me advise on what to do on my situation…

    I filed my resignation last January 16,2012 and my manager acknowledged is all verbally. We had our one on one meeting to discuss the reason of me leaving the company I told her that I need a bigger income and I can’t have it with the current employer so I decided to file my resignation. My last day is supposed to be on Feb 16,2012.

    Last Feb 3, 2012 I got an email from my application in SG that they need me by monday Feb 6,2012 so they can start processing the documents needed to hire me. I called my manager right away informing this as I know that I am no longer capable of completing my 30 days notice, I asked her if I can use my leaves for the remaining days just to complete the 30days. She said she will discuss it with the higher manager and will advise me.

    Monday feb 6,2012 I got a txt from her saying that it was not approve plus she haven’t signed my resignation yet. This makes me feel anxious it feels she’s blackmailing me since I have no documents that she did sign for it as we only talked about it verbally.

    The problem that I have now is I am being tag as NO call no show and now being asked to report to work which I am incapable to do so..

    DO we have a law about using remaining leaves of the employee if the employee cannot complete the 30 days notice? Do I have a valid case for me not to be tag as terminated in case?

    Appreciate all your advise.

    regards,
    Yana

    1. Atty. Post author

      Yana: If you sent them a written letter of resignation, that is enough notice to your employer that you are leaving. It should have taken effect on the date stated in that letter. However, you may have a problem regarding proof of notice of resignation if you failed to send a letter. No, there is no law requiring the employer to allow the employee to use remaining leave credits as terminal leave to complete remaining days of work– depending on the company policy on converting unused leave credits, you may be entitled to its equivalent in cash in the computation of your final pay. It is still the company’s prerogative to approve leave applications, and the employee must comply with attendance and leave policies. Please note that this opinion is based on the situation as described and may differ when actual circumstances change or other details are omitted. I hope this helps.

  71. elbert

    Good day,

    Would like to ask is it legal for hospital to require their employees to attend meetings, flag ceremony other hospital activities on their day off, before duty or after duty (e.g. from 10p-6a duty, meeting at 8a-11am, duty at 6p-6a again);
    It is physically exhausting and my fear are for my health and patients safety due to exhaustion. Working in a hospital is physically exhausting and I feel that we are being robbed of our right to have a decent day off to attend meetings.
    The employers keeps on giving Incident Report which they will file in the employees record.
    Thank you. God bless.

    1. Atty. Post author

      Elbert: If it constitutes overtime work, then you may legally refuse to attend meetings unless it is necessary for the welfare of patients and for the business of the hospital. You should also be entitled to extra pay for the additional hours you spend attending meetings (if beyond your usual work schedule). I suggest that you write the administration regarding your health concerns and have them examine the bases for requiring additional hours of work for meetings.

  72. lourdes

    pwede po bang magtananung kong panu mg reklamo sa kadahilanan na sa kulang na pinapa sweldo at ayaw pa swelduhin dahil nawala ng accounting ang Timekeeping ng isang empleyado anu po bang kaso ang pwedeng ilaban dito sa sitwasyopn na ito.

    1. Atty. Post author

      Lourdes: You can go to the Department of Labor and ask the Single Entry Desk officer for assistance. They will guide you regarding filing of complaint.

  73. dena

    kailan po ba release ng final pay or back pay after end of work contract? thank you

    1. Atty. Post author

      Dena : There is no fixed period for release the final pay after the end of a person’s employment although it should not be unreasonably withheld. I suggest that you follow it up and if you feel that it is not being attended to, then you may write your previous employer formally demanding its payment. If it is not released, then you may file a complaint at the Dept. of Labor for unpaid salaries.

  74. lance r.

    i have a very simple question atty. while rendering your time in the company, they can still germinate you? right??

    thanks

    lance

    1. Atty. Post author

      Lance r: Without additional facts, my opinion is that the employer can terminate an employee if there are justified grounds (misconduct, etc.) or authorized grounds (retrenchment, redundancy, etc.) for it and if they follow the procedural steps BEFORE sending the final notice of termination. The employee cannot be fired on the spot.

  75. kathy

    Hi Atty! I read some of your advices here..seems like you have been such a good help for most people who are asking for advices..i have a question for you too, I have been employed sine April 2011 up to the present..my company have deducted me all government premiums..but were not remitting it..we talked to the owner and had an agreement that she will just give it all back to us (sss, pag ibig, philhealth and tax deductions)..and so, we did receive it January of this year (2012) and was promised that starting this year, she will now remit all govt.premiums on time..unfortunately, since January 2012 up to april 2012, she still hasn’t remit everything (it’s like, history is repeating itself)..i have followed it up to her and this time, I was promised that she will remit everything QUARTERLY..is that acceptable? i mean, can all government premiums be reMitted quarterly? or would I (all of us in our office) have problems in the future? Please, please reply as soon as possible..we are really concerned about this, April is about to end but still nothing has been remitted..thank you in advance!!!

    1. Atty. Post author

      Kathy: Government agencies have different policies on remittances. I suggest that you go to the nearest office of the agency concerned (e.g. SSS, PhilHealth, PagIbig) and inquire about the status of your memberships. (PhilHealth, for example, collects the premium quarterly.) They can give you solutions as well regarding the non remittance of premiums. Your employer may already be in violation of certain laws which attach criminal liabilities. I hope this helps.

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