ILLEGAL DISMISSAL? WE WON!!

A recent case of illegal dismissal was decided in favor of the complainant, the employee, after a case lasting more than ten months, by the Labor Arbiter at the Region IV branch of the NLRC, in Calamba, Laguna.

NLRC Calamba.jpg

The decision, which was issued on July 20, 2017, awarded back pay and separation pay to the former employee, who was illegally dismissed by the company last year. No information has yet been received as to whether the company will file a motion for reconsideration through the NLRC, although they are already, technically, out of time. The employer, a large BPO company with offices in Metro Manila and Laguna, has not yet confirmed their receipt of the decision by posting the bond for the total amount of the award with the office of the NLRC.

This is the latest in a long list of cases being filed against BPO companies in the Philippines that are dismissing employees without following the rules laid down in the Labor Code of the Philippines. Many BPO companies are flauting the law and dismissing or suspending employees without following due process.

Watch this space for the full story soon. We will name the company involved and provide the evidence that the dismissal was illegal.

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7 thoughts on “ILLEGAL DISMISSAL? WE WON!!

  1. Angela

    Hi Sir,

    I work as a marketing executive in a multinational company. I was retrenched 2 yrs ago and filed an illegal dismissal case. I won the case in the labor proceedings with the labor arbiter and commission. I was reinstated 2 months ago. However until now I haven’t been paid my salary and other benefits on these 2 months I’ve been back to work. Can I file another illegal dismissal case (constructive dismissal)? Thank you.

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    1. No, not paying your salary is not grounds for constructive dismissal. However, it is grounds for a Money Claim through the DOLE/NLRC, and you are well within your rights to file it, since non-payment of wages is a violation of several articles of the Labor Code, mainly Article 116 for Illegally Withholding Salary, but also Article 103 for payment being outside the 16-day period between payments, and Article 118 for Retaliatory Measures, including withholding wages because of the complaint in the NLRC.

      However, first and foremost, you should contact your HR Payroll and ask why they are not paying you. If they do not respond, or refuse to pay, talk to your Arbiter or the lawyer who handled your case to have the Arbiter if he can hold them in contempt of court for violating your reinstatement by failing to pay your salary.

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      1. Angela

        I see. Thank you for your insights sir. Unfortunately I haven’t received any replies from our HR. I’ve sent them emails and spoke to them personally but they haven’t provided any answers. Even the atm and HMO cards have not yet been given. Also other benefits such as subsidies and allowances were not yet provided. Not to mention I’m the only one working in the office in our team while all the others are WFH. I’ve requested to have the same setup as them to no avail. That was why I was contemplating on filing a constructive dismissal (diminution of benefits and discrimination) instead.
        On another note may I ask if I can share this blog to a Labor FB group? Amongst all the blogs, fb pages and groups I’ve read yours was the only one I saw answering questions with profoundness and in depth knowledge of the labor code.

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      2. When the Arbiter awards “reinstatement” the law requires that the reinstatement be effected immediately, and that includes the payment of salaries and reinstatement of benefits. On your reinstatement, or within ten days thereof, the employer should have filed a Manifestation of Compliance with the Arbiter, and you should have been provided with a copy.

        If the company have failed to comply with those requirements, the best option is to apply to the Arbiter in a Manifestation of Non-Compliance, detailing the facts of the reinstatement and what is missing and respectfully requesting the Arbiter issue a Writ of Execution to be served by the Sheriff to obtain compliance with the Arbiter’s Decision.

        As for the work from home issue, that is a benefit that is at the sole discretion of management, and is not a right in law. And while they are probably refusing out of spite, there is nothing you can do about that.

        And feel free to share this blog anywhere it may be of some help to people. You can also include our Facebook help page, where free advice is also available on a one-on-one basis with our labor experts.

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      3. While this case is also one whereby the employer illegally withheld the salary of the employee, it is not following an Arbiter’s judgment. In the cited case, the constructive dismissal is what the Arbiter decided on, and the Supreme Court merely affirmed that deliberately and maliciously withholding salary is grounds for constructive dismissal.

        Your case has come to judgment, and the judgment of that was reinstatement without loss of seniority or salary. Since that judgment has not yet been complied with, the issue is still within the remit of your Arbiter, and the rules on this are clear where it comes to reinstatement.

        The employer should have been ordered to file a manifestation of compliance with the order for reinstatement, which should have been submitted to both you and the Arbiter within 10 days of your first day back at work.

        If he has not done this, he in in violation of the judgment, and the next step in this process is for you to file a Manifestation of Non-Compliance and Motion for Writ of Execution with the Arbiter who ordered your reinstatement.

        The Arbiter’s next step will be to issue a Writ of Execution to the Sheriff to force the employer to pay you or be held in direct contempt of court, wherein the company directors or board members may be held liable for such contempt, and may be jailed for up to six months.

        Rule 5, Section 19 of the 2011 NLRC Rules of Procedure states:

        In case the decision of the Labor Arbiter includes an order of reinstatement, it shall likewise contain: (a) a statement that the reinstatement aspect is immediately executory; and (b) a directive for the employer to submit a report of compliance within ten (10) calendar days from receipt of the said decision.

        RULE XI – EXECUTION PROCEEDINGS states:

        SECTION 12. In case the decision includes an order of reinstatement, and the employer disobeys the directive under the second paragraph of Section 19 of Rule V or refuses to reinstate the dismissed employee, the Labor Arbiter shall immediately issue writ of execution, even pending appeal, directing the employer to immediately reinstate the dismissed employee either physically or in the payroll, and to pay the accrued salaries as a consequence of such non-reinstatement in the amount specified in the decision.

        The Labor Arbiter shall motu proprio issue a corresponding writ to satisfy the reinstatement wages as they accrue until actual reinstatement or reversal of the order of reinstatement. (En Banc Resolution No. 11-12, Series of 2012)

        The Sheriff shall serve the writ of execution upon the employer or any other person required by law to obey the same. If he/she disobeys the writ, such employer or person may be cited for contempt in accordance with Rule IX.

        As I said, first and foremost, talk to the Arbiter and get the Writ of Execution issued. If, after the Writ is served, and judgment is still not satisfied, you can discuss with the Arbiter about filing a new claim for Constructive Dismissal and Money Claims. But the Arbiter has primary jurisdiction at the moment due to the judgment.

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