Things to Think About Before Filing with NLRC

When an employee is terminated, they often go through the stage of disbelief, and automatically assume that the dismissal was illegal. While not all cases of dismissal are illegal, there is a chance, depending on the circumstances, that it could be.

However, many cases filed with NLRC simply clog up the system because employees are filing for illegal dismissal without even knowing if there was an issue with their dismissal, which would give them a valid cause to file a case. In Region IV alone, more than 60 percent of cases filed either have no merit or are dropped through lack of interest, funds, or because it is taking too long.

The main points to consider when filing a case with the NLRC are:

Is the case valid for filing?

Are you committed to carrying out the case to the end?

Are you willing and able to pay the fees required for the provision of the legal documents that are required in the case?


aEmployees

Is the case valid for filing?

For example, in a case where an employee was dismissed for several infractions against the company’s Code of Conduct, the employee automatically filed a case with the NLRC because they believed that the dismissal was not fair. The reason they thought it unfair was that when they were served with a Notice to Explain (NTE), they were asked to give reasons why they should not be dismissed for the offence. The company’s Code of Conduct listed the offense as one that is terminable on the first instance. The Labor Code has no jurisdiction over the company’s Code of Conduct if the offense is one that can be construed as relevant for dismissal in the first instance, and if the company has this already in place, it is their right to follow it, and expect their employees to follow it as well.

In this instance, the company actually proceeded to afford the employee full due process, and made no errors in the progression of documents and the format of the progression, which meant that the dismissal was legal. However, the employee thought that it was unfair to be dismissed for a first offense, and filed a case with the NLRC for illegal dismissal.

How to know if the case can be considered as illegal dismissal.

Obviously, there are certain times when you can be sure that a dismissal is illegal, such as when you are summarily dismissed without the provision of the “two notices” required by the Labor Code. If you were not issued an NTE, given a chance to explain your side in writing or by hearing (and sometimes with both), and not given a Notice of Decision (ND), then you have probably been dismissed illegally.

Some cases however, are a little more complicated than that. In a case where the employer appears to have followed all the rules, on the surface, the dismissal may appear to be legal. However, there are many technicalities to the process of dismissal, and if even one of the requirements of due process has not been completed, the dismissal could be illegal.

So how are you expected to know which is which? This is where you really need to seek the advice of an expert in Labor Law. Either a lawyer with experience in Labor Law, or an expert in Labor Cases, can advise you on the best course of action to take, and whether the case is valid to be filed.

One of the main points here, though, is that you do need to provide the expert with all of the facts of the case, even if it may appear on the surface that the details are not relevant. If the expert has limited details, then he can only give limited options. There are many points that could make a case valid for filing with NLRC, and that can only be done if the full, correct details are given. Labor cases are unlike cases in a criminal court, where you can plead “not guilty” and your lawyer will present a case to prove you did not do it, even if you did. If you do not provide all of the facts and documents of the case, then you are more likely to lose, even if you are in the right.


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Are you committed to carrying out the case to the end?

Ask yourself this question, think about it for at least a couple of days, and then ask yourself again and think some more. One of the major concerns of the NLRC is cases that have been filed, and then dropped due to lack of interest. Most of these kinds of cases may have no merit, and not even be valid for filing, but because they have been filed, the NLRC is duty bound to follow them up.

Even in the simplest of cases, the timescale from filing the SEnA to final decision can be around 8-12 months. The last case I dealt with ran for ten months before we got a decision, and it is still ongoing as the employer concerned has not yet paid the award, even though they have not filed a Motion for Reconsideration (MR) or appeal. Even before the case gets to the point of submitting position papers, you will have attended at least four mediation hearings at the NLRC office, over a period of up to 8-10 weeks. After submission of Position Papers, there is normally a period of two weeks minimum, for the preparation and submission of Responses, and then the same for Rejoinders, if required.

So, now you have been processing all of these things for around 14-16 weeks. That’s around 3 months, and it is only just starting. While the Labor Code and the Implementation Rules and Regulations may give a timeframe for the decision as within 30 days, this rarely happens due to the sheer volume of cases filed that each Arbiter has to preside over. The average time for a decision on a Labor case after filing of paperwork is around 6 months.

Are you ready to spend the next 10 months running back and forth to the NLRC office, and then waiting for a decision on the case, and worrying if it will really be decided in your favor? The process is long and drawn out, and can be time-consuming. Moreover, if you are already working at another company, you may need to request time off to attend hearings and submissions.

Then there is the wait for the award to be paid. Bearing in mind that either party can file a Motion for Reconsideration or an appeal to the National Labor Relations Commission, any award could be delayed even more. If the motion is granted, the decision could be overturned, but even if it is upheld, there are other options for the losing party that means the process could be drawn out even longer. There are cases ongoing that have been running for as long as two years, and many are just waiting to be raffled in the Court of Appeals and the Supreme Court.

Again, ask yourself if you are ready to commit to seeing it through to the bitter end.


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Are you willing and able to pay the fees required for the provision of the legal documents that are required in the case?

Nothing in life is free. Whatever route you take, even if you have the knowledge and expertise to write and print your own legal documents, there is going to be an expense. And if the case goes as far as the Court of Appeals, you are going to have to engage an attorney to act on your behalf.

The only exception to this rule is if you are being represented by a Labor Union or a representative from a Collective Bargaining Agreement within the company. Their services are already paid for in your monthly dues, and they are the only people, apart from a Lawyer, who can act on your behalf in cases with the NLRC.

At the start, costs are minimal. Filing the SEnA is free, except for the photocopies you have to have done and the cost of sending the summons to the employer. Here, expect to pay around P100 for the first part, plus the travel expenses.

The two initial Mediation Meetings are free as well, except for the photocopies, again. Unfortunately, at this stage you are the one who pays for the photocopying of the minutes of the hearings, as you are the complainant. After mediation comes the interviews with the Labor Arbiter, which are also free (photocopies notwithstanding), which are also held on two occasions.

Now you get to the part where things start to get expensive; Position Papers. If the meetings and arbitration hearings did not produce an amicable settlement (and by amicable I mean that the employer paid your full backwages, night differential allowance, vacation leave accrual, sick leave accrual, non-taxable allowances, thirteenth month pay and other due payments as a normal, regular employee, from the time of the illegal dismissal up to and including the date of resolution of this complaint, plus separation pay and accrued costs for litigation), then it is time to engage an attorney, or have a legal expert draw up your paperwork.

Position Papers are legal documents that are used to present your evidence on why the dismissal was illegal. Both parties are required by the Labor Arbiter to present Position Papers as written evidence, as well as Response Papers (your opportunity to respond to the other party’s Position Papers), and Rejoinders (if requested by either party).

If you engage the services of an attorney, all of this will be done for you. On average, a lawyer in the Philippines charges around P5,000 for each set of papers. They also charge a huge fee (my friend charges more than P5,000) for each appearance at the NLRC, as well as charging you for interviews and discussions inside their own office. As a rough average, you can probably expect to spend around P40,000 just to get to the point where all the paperwork is filed, and you are waiting for the decision.

There are other option to hiring an attorney. Having an employment law expert write your Position Papers for you can drastically reduce your costs. And you really do not need a lawyer to go to the NLRC office to submit your papers for you. There is no legal requirement for representation at this stage, and if you get the papers written for you, you are allowed to submit them yourself.

There are very few people who write Position Papers for complainants in Labor cases. In all my experience, I only know of two, one of whom is myself. Lawyers will write them for you, without representing you, but the cost is still the same for their work. Having an expert write them for you is a lot cheaper, and the quality of the work is normally as good, if not better, than that of a lawyer here.

Experts in employment law that are not practicing lawyers are permitted to write Position Papers, however, they are not permitted to put their name to the work, and cannot represent you in the NLRC hearings. Experts can write your papers, and you then sign it as your own submission. Both the experts I know of are former attorneys (myself included), who no longer practice with representing clients, and are sort of retired.

These are the main things to think about BEFORE filing your SEnA with the NLRC office. So, if you have an issue with your employer, or you feel that your dismissal was illegal, unfair, or unjustified, get some advice BEFORE you file. You have 3 years from the date of the action in which to file your case with NLRC.

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73 thoughts on “Things to Think About Before Filing with NLRC

  1. Juvela Paton-og

    Hi Good Day po,

    Ask ko lang po if meron ako laban, I got promoted under probation for 6mos (with contract) as Operations manager sa isang BPO Company, After 6mos-12mos hindi po ako nabigyan ng papers as confirmed promotion(meron sila na hire 2 external same position). Nag close na po yun account na handle ko tapos nag offer sila ng account na malilipatan para maconfirmed ako nidecline ko na po kasi yun sahod 2k lang tinaas and same ng basic ng supervisor na under ko. Sabe ko po bigyan lang ako confirmation para magamit ko sa labas, until magresign ako hindi nila ako binigyan confirmation as OM since hindi ko daw ni accept un offer nila.

    salamat po in advance

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  2. Mics

    Hello po ask ko lang po kung pwede pa din po ba mag file ng illegal dismissal kahit na 3 weeks palang po nag work? Wala din po kaming contract. Driver po kasi sya at yung attitude nya po ang problema, sya din po mismo nag dedecide kailan sya hindi papasok sa work kahit sa mismong araw na po iyon, kahit na may byahe pa po ang truck. Hindi nya sinasagot ang mga tawag namin. Wala kaming ibang driver dahil basta nalang sya umuwi sa kanila. Then 10pm nag message sya na hindi daw sya papasok dahil masama ang pakiramdam nya. Nag rereklamo din sa kanya yung clients namin dahil hindi nya tinatapos ang 8hrs na service sa site. May karapatan pa din po ba syang magfile ng illegal dismissal kung tinanggal namin sya dahil ganun po sya? Salamat po

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    1. If the employee does not have a contract, then he is a regular employee from his first day, as any agreement for probation must be in writing providing the standards for regularization.

      This means that, if he is not working well, is always absent or late, and has complaints against him, you can only fire him after following Due Process, which consists of issuing a written Notice to Explain for the acts he committed that violated the rules or the law, then allow him five days to respond, hold hearing if needed, and then provide him with a written Notice of Decision, which is the point where he is legally terminated.

      If you did not follow the process above, and just told him to leave, then even with only 3 weeks’ tenure in employment, he has the legal right to file a case for illegal dismissal. And if you cannot prove he was dismissed legally and with Due Process, he will probably win.

      If you need further advice or help with the Complaint, please get in touch through our Facebook Page so we can discuss this further and see if we can help.

      https://facebook.com/ELPPhil

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      1. Mics

        Hello po. Kapag po nag issue kami ng Notice to Explain sa employee na nakasaad doon na within 5days kailangan nya yun isubmit, then after 5days hindi pa din po sya nakakapag pasa ng NTE, kasalanan pa din po ba ng employer yun kapag tinanggal na sya? Thank you.

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    1. That depends on what you are filing in the NLRC. If you are filing money claims and are still employed, the claims can only go back three years from the date of filing in the NLRC.

      However, if you are no longer employed, you can file any money claims pertaining to any period within your term of service, and you have three years to claim from the date of termination of employment ,whether forced or voluntary termination.

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  3. Garry Abalos

    Good day, I would like to ask if it is legal here in Philippines for the employer to transfer the employee on a different role or job description without providing a new contract for the new position department? And if the employer dismissed the employee, does it consider as illegal dismissal?

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    1. Good day. Actually, your employer has the right to transfer you to any department or line of business or location that it sees fit, as long as you are not considered to have been “demoted” by doing so, and there is no change in salary. This is permitted as part of the Management Prerogative to allow the employer to run his business any way he sees fit, within the law. And there is no requirement to issue a new contract.

      However, even having said all that, not every transfer will be legal if there are other circumstances involved. And quite often, transfers like this may not always precisely follow the rules. Each event should be looked at under its own merits, as there are nuances that may not be immediately visible. I would recommend talking to our experts about your exact circumstances.
      https://www.facebook.com/ELPPhil/

      When it comes to dismissal, if the dismissal was due to the employee refusing to transfer to the new position or job, then as long as the employer followed Due Process in the termination of employment, it would not be considered illegal dismissal. Refusal to transfer to the position or location required would be Willful Disobedience, which is one of the grounds for termination of employment under the Just Causes given in Article 297 of the Labor Code.

      Please come and talk to our experts regarding your concern if you have further details that may change the outcome.

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  4. Padayao Glen Puso

    Good day
    Atty isa po akong ofw seaman dapat po ang alis ko March 01 2022. nagkaroon akong problema ng February 28 2022 na mild stoke ako dinala ako sa hospital with complete laboratory, MRI ultrasound pero negative ang result.nitong May 2022 nag call ako sa office ko sabi nanghingi nako ng lineup para umalis uli dahil meron akong remaining n contract ang contract namin ay 7 months lang hangang ngayon hindi pa nila ako pina paalis ok to work na ako. tanong ko po atty meron ba akong karapatan n mag complain sa office ko bayadan nila yong remaining months ko sa contract ko.

    Maraming Salamat

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    1. I would need to look at your contract to be certain, but there are usually non-completion clauses whereby you cannot get the remainder of the contract paid under certain conditions. And the terms of the contract determine your rights where the law does not cover.

      If you want someone to look at your contract, get in touch through our Facebook Page, and we can advise you better.
      https://www.facebook.com/ELPPhil/

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  5. Eva

    Good day atty,
    Im glad to have come across your article. How can I get your service to make my position papers?
    I filed money claims complaint vs ex-employer June 2022. I resigned July 2020, my back pay and 13th month were not released yet, until I filed sena complaint that they were willing to give. But what Im trying to contest, aside fr the last pay, is the OT pays.
    Briefly, my contract stated I will render only 6 hrs a day duty for 5 days as a doctor. But in actual, I was going on duty for more than 5 days. I sought legal advise prior to nlrc filing, and I was advised that it is indeed considered overtime. But only 2019 I can contest, because of the 3 yrs filing from the date of action right?
    So now I received copy of respondent position paper and Im in a dilemma if to pursue the case or not, if I engage an attorney at this point il spend 40-50k. And from what I roughly estimated, I only get 50-70k if I win the case. So is it worth pursuing? But I thought I need to at least make a reply to respondent’s position paper, so Im asking if I can get your service for this to reduce my legal expenses at this point?
    Pls help me sir. Hope to hear from you. Thank you

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  6. Jet

    A friend fooled me and misused my bank account (my payroll account) and the bank closed my account based on AML rules but did not consider me a willful violator of AML rules because they have evidence it was first and only time (bank issued me a full SOA just in case) and that my friend indeed fooled me, and they reprimanded him in person. I admit ignorance of bank account rules though, and of trusting friends too much. I’m a working student, and first time bank account holder. Anyway, my employer of more than 6 months terminated me as soon as I reported this incident to my supervisor, because employer said it involved my payroll account and that I MIGHT be guilty of something (I wasn’t, and after a period of time I still am not). I was not given any written notice (of anything), and I was just told to immediately stop reporting to work. I still have my ID and old payslips; I was never issued any employment contract. I also never saw or had any discussion with my employer about any code of conduct. I did my job well, and was never cited for bad conduct or poor performance prior. Can’t afford a lawyer, so I’m concerned NLRC won’t accomodate me. Should I go to NLRC anyway? My employer is a local distributor of an as of yet small but already recognized premium international brand (with quite a following, and a real corporate presence in USA). Thank you for any help or opinion. (Translated from Tagalog to English by a friend.)

    Like

    1. This sounds as if you have valid grounds for a complaint of Illegal Dismissal. Not providing you with Due Process in your termination of employment would be considered as such. I would recommend, since you do not have a lawyer, to come and talk to our advocacy through our Facebook page at https://www.facebook.com/ELPPhilippines/ and we would be more than happy to help you file your complaint. There is no legal requirement to engage a lawyer, but getting some legal advice is essential in any case in the NLRC. And we can help you out there with out labor law experts.

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      1. Jet

        I decided to settle “out of court” for a small amount (1 month’s pay). This is because I’m young and am no match to the employer in confidence/stress mgt. and legalese. I do admit I’m not very sure I’m doing the right thing. I’m concerned about my lack of funds in the coming days and weeks and just want to apply for new work in peace.

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    2. John

      Goodday atty. What shoud I do if my employer doesnt respond on sena, i filed money claims and its looks like he ignore every follow ups of sena officer. 30 days meditation is already past. Thank you

      Like

      1. The Single Entry Approach mediation is mandatory before a complaint can be filed with the NLRC. Once you filed your SEnA complaint, the SEAD Officer should have set two dates for conference. If your employer refused to attend the first, then the SEAD Officer would defer to the second conference. If they also failed to attend the second conference, the SEAD Officer should provide you with a referral to the NLRC to file your complaint there.

        Your employer cannot make this go away merely by ignoring it. The process will continue without him if he refuses to respond to Summons and Orders of hte NLRC, and at the end of the day, he will always lose by refusing to respond. I would suggest you come and talk to our FREE Labor Consultants, who can provide you with free advice, assistance and documents for your complaint in the NLRC. Talk to us through our Facebook Page at: https://facebook.com/ELPPhil

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  7. JP

    Hi Good everning.
    Ask ko lang po if tama yung ginawa ng employer ko for these 2 issue.

    Kase po I recieved a notice of explanation from my previous employer for tardiness and since I’m guilty of my lates I told to the HR officer that I will no longer answer the NTE and will just accept the penalty indicated in the NTE which is 8 days suspension. Then after the deadline the HR Manager talked to me and told me that I will be terminated from my post and I have to leave the company the following day. And they ask me to submit my resignation letter on the same day.

    And now po after 4 months, hindi ko pa nakukuha yung final pay ko. And ang issue naman po nila is that I need to pay daw po for the repaint of the car issued to me and it cost around 60k pesos. I did not accept the computation since those are just minimal scratches and mostly done by the previous employee.

    Like

    1. Good morning,

      The first thing here is the termination when it says 8 days suspension on the NTE. This is unfortunate, but legal. While it may have only said 8 days suspension in the charges, the employer can terminate for excessive absences and tardiness, as long as the punishment is not overly-excessive.

      However, regarding their termination of your employment, there is no reason for them to ask you to resign if they have the grounds to dismiss you. This sounds like they wanted you to resign because they did not actually have valid grounds for dismissal. It would be interesting to see the documents related to their allegations of tardiness.

      As for your final pay, if they have valid grounds, they can deduct from your final pay for damages to any vehicle you used, as long as they can PROVE that you were responsible for the damages. Their claim should also be for the actual cost of the repair of any damages, and a quick Google check of local companies shows that a full vehicle re-spray costs around P30,000, depending on paint color. Obviously, less common colors cost more, but not as significant an amount as double the average cost.

      I would suggest that, if you wish to dispute their claim of damages, you should file a complaint in the NLRC for your full final pay. But I would also recommend that you have one of our labor consultants take a look at the documents of your dismissal, as this may have been done irregularly. And even if you did resign, it is not always voluntary.

      Please get in touch through our dedicated Facebook page at:
      https://www.facebook.com/ELPPhilippines/

      Like

  8. ruwais

    Good day,

    It was last October 6, 2021 when I was about to start my shift (WAH). There was this supervisor who called me ( not my immediate supervisor) and informed me that effective that day I am being put on preventive suspension. I was really surprised because I really don’t know the reason why and I have not received any kind or forms of notification. I even asked the supervisor if that was correct or in due process then he replied to me and reiterated that it was in fact correct and according to due process. I asked him several times if he was really sure because I told him that I am going to file complaint. After our conversation, I immediately sent an email to our HR and even called and was advised that it was illegal. To my surprise our HR does not have any knowledge on what’s happened. Sad part is that our HR didn’t do nothing but rather took the side of the OPs team. Last November 24, 2021 I was dismissed by the company without and funny thing is that no due process ever happened. Was this even legal?

    Like

    1. From the sound of it, your dismissal, and indeed your suspension, may have been illegal. Firstly, preventive suspension can be applied to anyone charged with an offense against the company, but you Do have to actually receive the Notice to Explain first. if you are not provided with the grounds for the preventive suspension, then your suspension becomes illegal.

      Secondly, in order for any dismissal to be legal, Due Process must be followed. This consists of what is known as the twin Notice Rule. The first notice is the Notice to explain, providing you with the charges and grounds, and giving you the opportunity to respond, while the second notice is the Notice of Decision/Dismissal, whereby the employee is provided with notice of his dismissal and the reasons for it.

      If your dismissal did not follow this process, then you may have been dismissed illegally. If you would like to discuss this further, we can provide you with completely free advice on what you can do, and help in managing a complaint in the NLRC. You can get in touch through our Facebook page at:
      https://www.facebook.com/ELPPhilippines/

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  9. Hi Sir Anderson,
    I was hired as Project Manager in one of the newly acquired Project of the Construction Company as Project based status on May 16,2021 which state that my employment will end upon completion of the project mentioned above, The company did not gave me a copy of the Contract , it state also on the Contract that I will received an incentive if the project is completed successfully on time.
    On August 2018 ,the project was suspended . I was reassigned to another company without any Contract but only a endorsement Letter to the Client that I will be the New Project Manager.
    On January 2019, the first Project assigned to me resumed and I performed what is my Contract since then I am handling two projects at the same time.
    Sometime on December 2020 , I was advised by my Project Director to attend a meeting on another project , I was introduce as Project Manager to the Client. Since that day I started managing also the aforementioned project without also a Contract. And so I am Managing 3 projects at the same time.
    On July 15,2021 , I was advised by our HR to report to office to discuss my employment status.
    On July 21,2021 I reported in our office as agreed. One of the HR told me to proceed to the one of the Conference with her. Inside the conference , The HR handed me a Letter and and told me to read it. Upon reading the Letter was shock for it was a Notice of Employment Termination Letter which state that my services to the company will end on August 18,2021 due to the reason that the first project I was assigned was already complted.HR did not allowed to signed on the Letter and did not gave me a copy but she allowed me to take photo of it which i filed and kept.

    Moreover as of July 21,2021 none of the 3 project is totally completed yet.

    The 1st project is almost completed but necessary permit to operate is still in progress and have not accepted by the Client yet.
    The 2nd and the 3rd project is still on progress.

    In view of the above , May I ask your good advice should I file for an Illegal Dismissal and what will be my first action .

    Thank you.
    William

    Like

    1. Being hired for a project means that your contract will terminate with that project, and that project alone is the remit of your contract. As such, the employer cannot use you in another project without a new written project contract for that second project.

      Since your project was “suspended”, one of two things can happen here:

      Your employment ends (if the project was permanently cancelled or suspended indefinitely, with no return date given); or
      Your employment, and thus the Project Contract, is temporarily suspended pending the restarting of the project after its temporary suspension, where a return date is given at the time of the suspension.

      Since you are a project employee, the use of you to manage a different project without a new contract is deemed to be regular employment. You were introduced as the Project Manager, and managed to project as such, without a contract.

      The law is clear that, where an employee is taken on without a defining contract stating that they are actually a Project Worker, they shall be deemed to be a regular employee, with all the security of tenure that goes with it.

      When they made you Project Manager of the second project without a contract, you became a regular employee, and it is illegal to dismiss a regular employee without first following Due Process.

      When they terminated your employment on August 18 2021, they dismissed you as a regular employee without following Due Process and the Twin Notice Rule.

      Based on your account here, you have been dismissed illegally, and may have cause for complaint in the NLRC.

      I would advise that you discuss this in more detail with a lawyer before filing. You can find free legal advice through our Facebook page at:
      https://www.facebook.com/ELPPhilippines/

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      1. Kimberly Domingo

        Hi Sir,

        Currently with dole na po ang complaint ko about removal ng lactation break ko since April up to present. Sa second hearing po hindi umaatend ang company labor namen then after that nag ask po sila anong settlement ang gusto ko na i raised nila sa company for approval.
        Ngayon bawal po ba ako mag ask ng reversal ng break ko into money?
        Hindi ko na po kasi magagamit yung break ng lactation kasi po no longer breastfeeding nako since August po.

        Salamat po.

        Like

      2. Republic Act No. 10028 (amending Republic Act No. 7600) provides for lactation breaks of up to 40 minutes per day for breastfeeding mothers. However, neither the law nor the Implementing Rules provide for any DOLE-based penalty for refusing to allow you to use that break.

        What it does include is a fine system for establishments that “unjustifiably refuses or fails to comply with Sections 10 and 12 of this Rules”.

        No, you cannot ask for the break to be converted to cash, as you were already paid anyway for the time you would have been on the breaks. As far as the law is concerned, the only thing you have here is that your right to this lawfully-mandated break has been violated. In law here, this normally means that you would be entitled to Nominal Damages for a violation of your lawful rights, were this to go to the Arbiter.

        I would suggest that you ask for compensation in the form of damages to the amount of Ten Thousand Pesos (Php 10,000.00) for the blatant refusal to allow you to exercise your lawful rights.

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  10. Rita Aquino

    Good day. Ask ko lang po kapag po ba ang reason of termination is due to “loss of confidence or trust” pwede pang i appeal sa NLRC? Paano po kung sa tingin ng employee e ginamit lang ang reason na yan para lang mapanindigan ang ginawang termination?

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    1. Hi. The first thing to consider here, when being terminated for a “loss of confidence and trust” ground is “Are you in a position of trust within the company?”

      Not every employee can be terminated for loss of trust, as it requires that employee to be in a position of trust in the first place. For example, a factory worker operating machinery or working on a production line does not have a position of trust, as they are not holding a position of trust and confidence. However, a checkout operator is, as hey are handling money.

      There are two (2) types of positions in which trust and confidence are reposed by the employer, namely, managerial employees and fiduciary rank-and-file employees. The following positions have been held to involve trust and confidence, as per the Supreme Court, though the list is not absolute, and trust depends a lot on the circumstances of employment:

      (1) Cashier
      (2) Bank Teller
      (3) Financial Controller
      (4) Finance Director
      (5) Warehouseman
      (6) Hotel Manager
      (7) Miners
      (8) District Sales Supervisor
      (9) Sales Supervisor
      (10) Salesman
      (11) Route Salesman

      Secondly, you should consider whether the allegation is based on facts and it was done willfully, and not just an error of judgment.

      Loss of trust and confidence, to be a valid cause for dismissal, must be based on a willful breach of trust and founded on clearly established facts. The basis for the dismissal must be clearly and convincingly established but proof beyond reasonable doubt is not necessary.

      In order to be a valid cause for dismissal, loss of confidence should not be (a) simulated, (b) used as a subterfuge for causes which are improper, illegal or unjustified, (c) arbitrarily asserted in the face of overwhelming evidence to the contrary, and (d) a mere afterthought to justify earlier action taken in bad faith.

      If neither of these apply in your case, then you may have grounds for a complaint in the NLRC. I would suggest you speak to one of our lawyers for some free legal advice on your exact issue.

      https://www.facebook.com/ELPPhilippines/

      Like

  11. Marie Rodriguez

    Good evening! I worked as a supervisor for a company. An employee of ours filed a complaint for illegal dismissal claiming for separation pay and sales incentive pay. I am included as a respondent since he was under my supervision in sales and i am the one issuing the memorandums to our employees for any issue relating to the business and company conduct. This employee has been given successive verbal warnings for the many instances of his work attitude. He has never even reached the quota for sales incentive. Recently this employee was found to have falsified documents including declaration of false sales and receiving complaints from client stores of alleged missing items and selling promo packaged items individually. I gave him a memo stating his offense with supporting details and informing him that such actions are grounds for dismissal on a first offense as stated in the company handbook. He was given the chance to explain his side on this matter. After receiving his statement, the management was not satisfied so another memo was given to him stating his suspension for 15 days so as for the management to conduct a thorough and physical investigation. The management opted to give him another chance to explain with all the evidences that have been gathered which have clearly shown that he had breach company trust through falsifying of documents and declaring false sales. After 15- day suspension this employee returned to the office to resume working. I gave him an NTE as another chance for him. But this employee, did not even read it and refused to accept and sign it. Left the premises with an arrogant attitude. As per DOLE procedures, I signed the NTE with a note Refused to Sign, the date and time. I asked a fellow supervisor present during that time to sign as well as a witness. I sent this document thru registered mail to his home address. I attached the receipt from the postal office to the 2nd copy if the NTE as a company file. The management still continued to give him more time to issue a response. After 32 days to be exact, I sent him thru registered mail an ND/Termination letter stating all of the management’s investigation and evidences stating therein the violation of the Company policies and code of conduct. I noted also that his absence has been considered AWOL since he wasn’t given a termination notice during that time he walked out and he never contacted the company of his absence. I also noted that after 32 days he is deemed to have abandoned his employment. A few weeks after, the company received a letter from NLRC that a complaint was filed by this employee.
    As I am not fully knowledgeable in NLRC proceedings, and I am also liable for issuing the memos and being his supervisor, with all due respect, I would like to ask your opinion since you are a legal expert in labor, did I do the proper procdures in terminating an employee for just cause? I have read in this article that it would really take a lot of time for such proceedings to take place. Although our company is wiling to go through the proceedings since this employee had violated company policies.
    Thank you sir!

    Like

    1. From everything you have said here, you appear to have followed Due Process in processing the NTEs and NODs correctly. Right down to the witness signature on the NTE he refused to accept and sending it to his listed address by registered mail. Even giving him 32 days to respond before terminating him for his actions is above and beyond what is required under law.

      As for you being a co-Respondent in his complaint to the NLRC, that will be easily removed by the company’s lawyer when they write the Position papers, as the Complainant can only file the complaint against the direct employer, which is the company as a legal entity in its own right. An employee of the company cannot be made party to a complaint as they are merely working and acting on behalf of the company.

      If your company does not have a legal counsel, I would recommend that they engage a good lawyer immediately, so that they are adequately represented in this complaint. With the evidence you state the company has, this is not a hard case to defend.

      Like

      1. Marie Rodriguez

        Thank you so much Sir. I do as much as I can to follow DOLE procedures for the welfare of my colleagues and our employer as well. God bless you! Stay safe.

        Like

  12. ed paredes

    Hi. Just came across this while checking my options. My company is not protecting me from a not-so-good client and because of this, I feel I am being constructively dismissed. Is there a way I can talk to someone to see if I have a case? I know I am not being treated fairly and I would like to know what are the things I need to get in order to prepare my case. Thank you.

    Like

  13. Jomer Narvaez

    Hello. I just want to inquire about my retirement plan that was included in my contract. I worked with the company for more than 7 years and on my contract, it says that if you will stay in the company for at least 5 years you will get the retirement plan. Can I still get my retirement money even though I was terminated? Because on my contract it is not stated that you will not get it if you are terminated. Thank you!

    Like

    1. Many companies offer a “retirement plan” for employees that stay with them for five years or more. However, that retirement plan is not payable except in one instance: when you retire from working with the company. Private retirement plans can be availed of even if you are not yet senior, as they have set criteria. In order to avail of the retirement plan given by your company, you have to retire from employment. Being terminated, or leaving for any other reason, does not entitle you to the retirement pay.

      Like

  14. nathalie

    Hi sir!

    I would just like to ask if my laban ang case ko for constructive dismissal lead to illegal dismissal?? I have a lot of disputes sa company ko which offsetting OT and rdot to compensate my missing hours, however, a lot of us (employees) feel that we are not being paid properly and this complaint reached the legal dept. and was able to speak to the company lawyer. But when I mentioned the labor code offsetting OT to compensate for missing hours, He didn’t reply at all and suddenly they installed an app to my PC and informed me of a lot of allegations then terminated me.

    Thank you in advance sir.

    Like

    1. This sounds like it may have been an illegal dismissal, though a little more information would be required to be sure. If you are willing, we can discuss this in more detail through our Facebook page, where you can get advice from a labor law expert completely free, and talk in complete confidentiality. Please get in touch, as we would also be able to help with the handling of the complaint.
      https://www.facebook.com/ELPPhilippines/

      Like

  15. fe

    good evening po

    I am a govt employee. umabsent po ako without notifying my employee of the reason why i am absent. i was not able to file a leave of absence cause my father was in and out of the hospital. I was absent for months, Can i still file a case for illegal dismissal kahit tapos na po ang prescrition period. the termination happened 6 years ago.no notice of termination, no hearing and didn’t received any document stating that I am dropped from the rolls.. nang ako ay papasok na sinabihan po ako na dropped from the roll na daw po ako. hindi na po ako nagfile before kasi ayaw ng asawa ko. kung 2014 po ako na dropped may laban po ba ako na mareinstate?

    Like

    1. The prescription period for filing a complaint with the NLRC is 3 years for Money Claims and 4 years for Illegal or Constructive Dismissal, Illegal Suspension, etc. The same is true for government employees, whereby any action to be made regarding illegal dismissal should be filed with the Office of the Ombudsman within Four Years from the date of effectivity.

      Moreover, going absent without notifying your employer for a period of several months would be considered as AWOL. While you may not have received any Notice to Explain or Notice of Decision, the fact that you left without a word and never went back or contacted them for several months would be deemed to be Job Abandonment, which is a form of Voluntary Termination. I would recommend you just move on and forget about it.

      Like

  16. Kim

    Hello po sir good morning and have a blessed sunday..sir ask q lang po kung may laban po ba kami sa employer namin kasi po last sept.pa po kasi kami itinago sa mansyon ng boss namin sa kadahilanang may covid daw po kami ehh wala namn po clang pinapakitang result at pwede daw po kami bumalik sa work after 14 days ehh kaso hanggang sa umabot na po kami nov.28andun parin po kami sa mansyon na at tsaka po sinabi na po ng boss namin na tanggal na daw po kami sa work na walang sapat na dahilan kung bakit kami tinanggal at papauwiin na daw po kami sa probinsya namin bago daw po magpasko ehh hanggang JAN..po andun parin po kami sa mansyon nya walang sahod na natanggap at puro lang po paasa ang mga sinasabi nla sa amin kaya po napagdesisyunan namin noong Jan.8 2021 na umalis nalang po kami sa poder nla kasi po natatakot po kami baka kasi po papipirmihan po kami ng mga blankong papel ng sapilitan kasi yan po ang always nlang ginagawa every sahod po monthly..simula po nung inilagay po nla kami sa mansyon nya last sept.1 beses lang po cya nagpakita sa amin yun ang time na sinabi nyang wala na kaming work na babalikan..at lahat po ng labor code ay wala po silang sinusunod..pls..help us..lumapit na po kami sa dole for settlement wala po nangyari kaya binagyan po nla kami ng referral for NLRC last march 23,2021..malaki po ba laban namin sa company namin sir?

    Like

    1. If you were placed on floating for COVID quarantine in September, but were not permitted back to work after the required 14 days and medical results, then you were illegally suspended once you were fit to work. And if the boss just told you verbally that you were fired, then you have all been Illegally Dismissed, which is valid grounds for complaint in the NLRC.

      As long as we can prove that you were employed, which can be done using payslips, then you have good cause for winning the complaint. If you need assistance in this, our lawyers can help with free advice, and we can offer a No Win No Fee service for your whole case, to ensure it costs you nothing up front to complete your complaint. Get in touch with our legal consultants at https://www.facebook.com/ELPPhilippines/

      Like

  17. Netty

    Good day po Atty.,

    Is it not illegal dismissal if I signed a memo (once in 2018 and another this Nov. 2020) both stating that I will be terminated if I am late or absent again? I failed to comply on both but they did not fire me on the first memo. I got second memo this year but I got sick and I failed to get a medical certificate (I can’t get up). After the third day of my sick leave, admin sent me a Facebook message that I am terminated due to tardiness and absenteism that day and that it’s my final salary. No NTE, no hearing. Admin only talked to me once when she gave me the 2020 memo.

    They deducted the “help” they gave me on lockdown to my 13th month pay because I wasn’t able to work from home which is half of my salary every pay day and it exceeded to my total 13th month pay. There’s no documented agreement whether the money they gave us during lockdown is a financial assistance or a debt to be paid by our 13th month pay. They only circulated a screenshot from our boss’ message (with his consent) saying that they will pay half of our salaries every pay day as a help and givong bonuses for those who are able to work from home to be fair to everyone.

    I worked there in 2 years and 5 months, no employment contract they just made me sign confidentiality agreement before working. I have company ID. No benefits (SSS, Pag-ibig, etc.). No work no pay. No payroll account just paid by cash.

    I just want to know if I have ground/s to file for a case (termination without due process) given that I signed the memo or a case for not giving me government benefits if I am supposed to be entitled for those rights even without employment contracts.

    Thank you.

    Like

    1. Yes. You have valid grounds for a case of Illegal Dismissal. Irrelevant of any memo you may or may not have signed agreeing to being terminated if you are late again, the company still has to abide by the law and follow Due Process in the termination of employees. Without the NTE and following process, all dismissals are illegal, and can be grounds for complaints in the NLRC.

      The deductions can be done, as they are clearly assistance given, as per the message of your boss. That is written evidence of the intent, which would be admissible in any Labor dispute on wages. And overpayments like this can be deducted from salary or bonuses at the discretion of the employer.

      However, that said, not paying your benefits such as SSS and Philhealth for more than two years is also a violation of the law, and should be brought up as a complaint with the relevant department for the contributions. And while there is no legal requirement to having a signed contract of employment, you are still protected under law as an employee, with all the rights of the Labor Code and our Constitution.

      Like

  18. Frank

    Hi atty good day i have a friend nag wowork cxa sa pharmacy then wla po clang proper contract wlang proper na payslip ung work po kasi nila is 10hrs without OT pay then wala po silang mga leave then ung mga holiday pay wlang bayad po below minimum wage po special holiday walang bayad din po sa ganitong case po ba gaano ka tagal po to? salamat

    Like

    1. While a contract is not actually a requirement, unpaid overtime is illegal, as is pay below minimum wage and not getting paid premium for holidays. I would recommend that your friend discuss her case in person with a labor lawyer for the correct advice.

      Like

  19. Candice Millen P. Castor

    Hi, Good day po Attorney!

    Pasensya na po sa abala ang concern ko po is para sa Papa ko at kung maaari po ba ay pwede akong humingi ng advice sa kadahilanang ang Papa ko po ay nais niya ng magretiro sa trabaho bilang isang driver sa pinapasukan niyang kompanya (62 yrs old) ang nais lang po niyang malaman is maliban sa inaasahan niyang retirement pay na pwede niyang masingil maaari niya daw po bang masingil yung mga hindi pa naibigay sa kanya katulad ng 1. Holiday 2. Service Incentive leave 3. Higit isang oras na trabaho niya dahil hindi daw isinasama ang sa bayad ang kanyang isang oras na pasok dahil sa pinapapasok siya ng 7:00 am – 5:00pm na dapat ay 8:00 am – 5:00 pm.

    And last Question lang po about a Prescriptive Period anu po ba ang layunin nito at bakit po 3 taon lang po ang bisa nito gusto lang po naming maliwanagan sa kahulugan nito Maraming Salamat Po.

    Like

    1. Your father is entitled to his Retirement Pay. The minimum retirement pay shall be equivalent to one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one (1) whole year.

      The term “one-half month salary” is equivalent to 22.5 days, as it consists of the following:

      1. Fifteen (15) days salary based on the latest salary rate;

      2. Cash equivalent of five (5) days of service incentive leave;

      3. One-twelfth (1/12) of the thirteenth-month pay.

      (1/12 x 365/12 = .083 x 30.41 = 2.5)

      The computation for standard retirement pay is:

      Minimum Retirement Pay = Daily Rate x 22.5 days x number of years in service

      The prescriptive period is the period permitted in which to file a complaint of money claims against an employer with the NLRC.

      Like

      1. Candice

        Hi Attorney ask ko lang po kung ang isang mangagawa pong naka base ang sahod sa dami ng ginawa nya or sa madaling sabi ay “Pakyawan” makakatanggap po ba sya ng Holiday pay at Service Incentive Leave Pay at Overtime Pay kapag bibigyan sya ng Separation Pay ayun lamang po Maraming Salamat Po.

        Like

      2. If you are paying Separation Pay for an employee, then the amount should be based on his monthly salary. This includes his basic wage plus normal allowances that are paid regularly, such as food allowance, rice allowance, etc.

        Holiday Pay conversion and/or SIL conversion are separate payments, and not included in the computation for Separation Pay. Overtime hours are also not included.

        Like

    2. Hi po..My referral na po kami para itaas po sa NLRC ang aming problema.Pumasok po kmi sa trabaho ng may 2016..Wla po kmi kahit anong benefits,OT pay holiday pay payslip or kaht ano po.Daily po kami pumapasok ng 7am-9pm..Halos ligo nalng po ang pahinga namin,kumakain po kmi ng 2pm sa lunch sa sobrang dami po ng trabaho .7-11 katao po ang tao nila Kumikita po sila ng 20k up daily sa pagbabarbque 1 pwesto palang po yang kita na yan..Ngayun po ay ngfile po kmi sa dole,ung kasma ko inaaccept po nila na tauhan nya tas ako daw po ay hnd. Tinanong po ang jasama ko kung magkanu ang gusto nya kung skali ngsabi po ang kasama ko na dumepende po sa kwenta ng teacher ng kapatid.ot palang po ay pumapatak n ng 500k+ wla pa po ang benefits at 13th.Ngsabi po sya ng 700k which is alam po nmin na malaki po tlga dahil ayaw nmn po nmin tlga mgpaareglo kaya po sya ngbigay ng gnun kalki na halga.Napagdesisyunan po ng employer nmin n hnd n daw po sya mkikipag areglo kahit anong amount pa daw po..Gusto lang po nmin ay lumabas ang katotohanan na ngsisinungaling sila about po sa pagtanggi skin bilang empleyado nila at mkuha po ang para sa kasama ko sa malinis at ligal na pmamaraan sa NLRC.Itatanong ko lang po may laban po kaya kami?Nung asa dole po kminay private attorny na po ang hinharap nila samin which is po nattakot kami.pero dahil nga po purong katotohanan lang hawak nmin patuloy pa rin po kmi humaharap sknila n nakataas ang noo.salamt po sa sasagot monday po asa NLRC CALMBA PO KMI..

      Like

      1. If you have already filed your complaint in Calamba NLRC, then you need to follow through with their Arbiter’s mediation, and then the Position Paper, if you are sure of your complaint. I would recommend that you seek the advice of a lawyer before continuing further, to ensure that you know how to proceed, and what to say when it comes to the next meeting. You can contact a decent lawyer who works for free through Facebook at:

        https://www.facebook.com/ELPPhilippines/

        They can help with advice and documents for your complaint.

        Like

  20. Rachel

    Hi, good day po Attorney! Question po. Yung employer ko po kasi, pinag log out ako bigla last Wednesday without any reason. Tinatanong ko po kung bakit pero ang sabi lang ay maghintay daw po ng tawag from HR. I coordinated with HR, parang hindi nya din alam kung anong nangyari. Sabi nya sakin, ang TL daw po ang mag aadvise samin kung bakit kami pinag log out. Hindi din po nila sinasagot lahat ng tanong ko at palaging sinasabi na nirereview pa daw po nila. Hanggang ngayon po hindi nila kami pinag lalog in. Hindi din po nila sinasagot kung papasahurin pa nila kami.

    Like

    1. HI. While it is not clear why they would have logged you out of work, it is clear that it is your Team Lead that is meant to update you on the status of your employment.

      I would recommend contacting your HR and asking why you are not being permitted to work, as there are laws around suspension of employees.

      An employee can be suspended for two reasons:

      1. as a preventive suspension to prevent damage to people or property in the course of the somapny investigation into an Incident Report against the employee;
      1. as a measure under Article 301 of the Labor Code, when the company has a need to suspend business operations, or a part thereof, for financial reasons.

      Item 1 does not require advance notice, but does require you to be notified that you are being suspended PRIOR to the actual suspension.

      Item 2 normally requires you to be given a 30-day notice of the impending suspension. However, in cases of COVID-related suspensions as per the latest advisories from the DOLE, immediate notice can be given, as long as the notice is given PRIOR to the suspension.

      If nether of the above apply, then you are currently on an Illegal Suspension, for which you can file a complaint with the NLRC if your TL and HR do not give you reasons immediately.

      Like

  21. ghe

    Hello atty!
    Yung company kasi namin ay hindi pa nabibigay ang 13th month pay last year, pati contibutions namin for the longest time ay hindi rin nire-remit sa sss, pag ibig at phil.health. Another is yung this year naming sahod hindi rin binibigay like 4 months kaming delayed pero dire-diretso ang work namin. Now the question is, may laban ba kami (14 complainants) against sa employer namin since iniakyat na namin to sa NLRC. Ano po bang preparations ang kelangan naming gawin once na on process na yung kaso.Please advise us. Thank you!

    Like

    1. If you have already filed your complaint in the NLRC, then you are on the way to a resolution. Failing to pay 13th month is a violation of law, and the requirement to pay 13th month pay to EVERY employee is mandated. If the issue cannot be resolved in the mediation meetings, and the Arbitration Hearing, you will be required to submit written Position Papers, from which the decision of the Labor Arbiter will be made, based solely on points of law and jurisprudence.

      Like

  22. Hi Atty! Thank you for this blog. I want to ask if my case is deemed valid to be filed in NLRC. I was recently terminated by my employer last week due to fraud. I received an NTE and had a hearing for it. However on their notice of resolution, the rules they provided are not consistent to what was taught to me while I was employed. 1 clause was for a different line of business, I asked them about it their response is they cant change the PDF file, second they gave me clauses of decks from 2018 when I was only hired 2019 and those were not really discussed to me thoroughly. Also I never received any coaching log in my entire stay from start to finish about the process. Our process changes everytime depending on what the business needs and they relay it once in a team meeting but there is no follow thru afterwards. Our labor relations dont even have a black and white copy of our process as its not consistently gets updated. Also in my case- they back tracked my sales for 2019. Before we get paid our sales gets approval first from our manager so if there is something wrong they are our auditors. In this case I was never flagged on the 3 accounts they were claiming to be fraud even though they should have reviewed it before approving. Please let me know as I am planning to file it this month. Thanks!

    Like

    1. If you were terminated for a Just Cause under the Labor Code, then the employer MUST be able to follow Due Process and have absolute proof of the allegations. If the cause was “fraud”, then they are obliged to provide all evidence to prove such was true. If you feel that you did not commit fraud in the workplace, then you should fight this allegation to the fullest.

      More details on the actual termination would be better for more sound advice, and our lawyers can advise you for free, if you can provide the document they used to terminate you. Please get in touch through our Facebook page at https://www.facebook.com/ELPPhilippines/ for a more confidential discussion.

      Like

  23. Gyorgie San Antonio

    Hi Atty,

    Good day!

    I would like to know when do we need to file complaint to NLRC. A clinic manager was served a termination letter (w/ 30 days notice) due to the closure of the branch clinic. He received the letter, however, he did not sign it as he feels that he was not given the opportunity or due process to choose from other clinics that doesn’t have clinic manager(s). Can he file for a complaint to NLRC as soon as possible or does he needs to wait after 30 days?

    Thanks.

    Like

    1. Hi,

      Unfortunately, it is the employer’s discretion as to whether or not to offer another position in a different clinic or whether to retrench an employee if a clinic closes. As he has no definite knowledge of the staffing of other clinics, and the employer could already be choosing staff to cover any manager positions that are vacant, complaining for those reasons would not be a viable case. And as long as he is paid his full Separation Pay of One Month per year of service, he actually has no grounds for complaint.

      Like

  24. meron po ba akong laban sa employer ko? im planning po to file a complain to NLRC regarding po kasi until now hindi pa rin nairerelease ang back pay at COE ko. this year April po ako nag resign, but until now wala pa rin po silang advise kung kelan possible ma-release..

    Like

    1. HI. AS long as you have completed your clearance with the company, then they are obliged to release your final pay and COE within a reasonable time frame.

      If you are complete with clearance, and they are just being annoyingly obnoxious, you can use this template letter, which may give hem the nudge they need. If that fails, I know a lawyer that will write a legal demand for free.

      Just edit this to suit your needs:

      [Your Name]
      [Address]
      [Date]

      [Company]
      [Address]

      Re: Final Pay and Certificate of Employment

      Good Morning,

      In light of the fact that I have been cleared from my employment with you for [months] now, and have had no response regarding when you will be processing my Final Pay and Certificate of Employment, I am forced to take more drastic measures now.

      Under Labor Advisory No. 6, Series of 2020, an employer has 30 days to provide an employee with their final pay, pending completion of their clearance. This is not just a guideline, it is now a law. As such, you are obliged to follow this legal requirement, and provide a terminated employee that has completed clearance with their final pay within the aforementioned time of 30 days.

      As you have not replied to my requests asking for a definite date when my Final Pay and CoE will be released, I hereby give you seven (7) days from receipt of this letter to provide my Final Pay and Certificate of Employment.

      Your failure to do so WILL result in legal action being taken against you for Illegally Withholding Wages, under Article 116 of the Labor Code (renumbered). If the Final Pay and CoE are not received by [insert date], I will be forced to file a complaint and money claim with the NLRC, to include moral and exemplary damages and legal fees.

      I look forward to a speedy resolution of this unfortunate yet illegal action that you have undertaken.

      Yours,

      [insert name]

      Liked by 1 person

  25. keith

    Hi, what about forum shopping since the respondent says that the complainant is used to dong forum shopping since the first file was in Papua New Guinea then was continued in Philippines. Same case filed for both no inconsistencies not like the respondent now doing character assassination instead of sticking to the facts of the case illegal dismissal.

    An, if you ask for extension on the REPLY letter then was late for 1 day does it have a sanction

    Like

    1. Any case filed in Papua New Guinea would not have relevance on any case similarly filed here in the Philippines, since the NLRC does not have jurisdiction there. As long as there is no forum shopping here in the Philippines, the case should prosper correctly. However, if anyone asked for an extension for the response to the filing, and it was one day late, the receipt of the filing of the response would depend on the discretion of the Labor Arbiter. While there are guideline timescales for response submission, the Labor Arbiter can use his discretion to allow filing or not. If filing was accepted, despite being one day late, then it is accepted. No argument can change that, except at the level of the Court of Appeals.

      Like

  26. Gen

    Hi, I just saw this post in the internet and thought if I can ask a question. Based on your understanding, what could be the difference between these 2 policies:
    A. Violation of Company IT Policy which are not business impacting in nature (Saving personal information,personal credentials, personal photos, downloading games, sharing of password to co-employee without intent of fraud, unauthorised use of password and access credentials for non-work related purposes,etc.) *should a virus result to this, it will automatically be a Group D offence

    Vs.

    B. Unlawful access, storing and/or sharing of customer/client/company confidential information

    Let’s say an employee accessed his colleague’s login details (Skype, Okta, FB). The login credentials were in a public drive owned by the company but have used it for personal reasons. On what clause do you think this scenario should fall?

    I am hoping that you can consider looking into this. Thanks a lot 🙂

    Like

    1. This is pretty simple really. Since the information used had nothing to do with customer/client, or company information, being login details for a non-company account, then the scenario you describe would fall under a Violation of Company IT Policy. The saving of personal information on a company server or drive means that the person whose login details they were is guilty of this violation, while the person that used them would not be guilty of anything, unless the company has a policy of what sites can and cannot be used on company computers.

      For example, if the account accessed was Facebook, and the company does not allow access to social media, then the user is guilty of that action. However, if the company allows you to use social media on their company computers, then no violation has occurred.

      However, this is not a guarantee, since it also depends on any other clauses and policies that the company might have in place and the circumstances surrounding the use of the login details. Some companies would find it an immoral act to use another person’s account login details without their permission, irrelevant of them being stored in a public place. This could be used as a grounds for termination under gross misconduct.

      I hope this helps, but it is only based on the facts you have presented here.

      Like

      1. Gen

        Hi there, thank you so much for that prompt response! That really clarified most of my question. 🙂 But what if the Okta login was accessed, and this was a credential provided by the company. However, no other company/client information was retrieved, only personal conversations of the said account holder, can that still fall on the Violation of IT Policy or that is already under the 2nd scenario? Thanks a lot! 🙂

        Like

      2. If any company-issued login was used by an unauthorized person, then it violates the company’s IT policy, and also includes a violation of the second option in your original message, “Unlawful access, storing and/or sharing of customer/client/company confidential information”, even if no confidential information was accessed. This kind of scenario is usually grounds for Gross Misconduct, and is a valid termination offense. In using someone else’s Okta login details, which belong to the company, and not the individual, a severe violation of the Company Policy has occurred.

        Like

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