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