HR Talk: 22 Most Common Questions Asked by Employees in GCQ Answered

It’s been a month since we returned to work and things are returning back to normal except for the COVID-19 confirmed cases rising on a daily basis, at the very least, deaths are kept steady, which is still a good thing.

The HR world is still full of uncertainty as companies retrench large group of workers and businesses are closing down due to large losses due to the 2.5 months of no income as a result of ECQ. Last June 2020, the PSA announced that 7.3 million workers have lost their jobs. I feel that this number is higher now in July as more companies prepare for a recession come 2nd half of 2020.

69000

I have already done this exercise last May but given the many changes that’s happening over the last few weeks, I’m updating this post again with the latest advisories.

Because of this, I’ve decided to just collate all the most common questions and answers for everybody’s benefit.

22 MOST COMMON HR QUESTIONS EMPLOYEES ASK DURING GCQ ANSWERED

1. Now that there’s more confirmed cases of COVID-19 in the Philippines are private companies mandated to pay Hazard Pay

2. I have worked for my Employer for more than 10 years. But I need to resign for my health. Do I get separation pay?

3. Who are the Only Employees qualified for Separation Pay?

4. Can a Company Fire Employees During ECQ or GCQ?

5. Does a Company Need to Report All Employees Who Departed to DOLE?

6. Patay! The Company has not Reported to DOLE? Papaano na?!

7. How Soon Can You Rehire After a Retrenchment or Redundancy?

8. There’s Too Many COVID-Cases Nowadays. Takot Ako for my Life. Can I Not Report To Work?

9. Transportation is inconvenient. Can I Not Report Because There’s No Public Transportation Available?

10. My Employer is asking Me to Give Them a Negative COVID-19 Test Result before I am Asked to Report. Who will Pay for It?

11. Is COVID-19 Testing Mandatory?

12. We have a Staff who Refused to Undergo the COVID-19 Test? Babayaran na namin, tapos, ayaw pa? What Should We Do?

13. Oh NO! One of Our Staff Tested Positive in Rapid Test. What Do We Do?!

14. Will the Company pay for the 14-day Home Quarantine if due to COVID-19?

15. If I am positive of COVID-19, what is the Company Liable for?

16. I am Pregnant or a Senior Citizen, and I was Placed in Floating Status. Is this Legal? 

17. Is the Employer Not Obliged to Give Employees Work From Home (WFH) Opportunities?

18. Wait, is Floating Status Even Legal?

19. Can an Employee Find New Work When Placed in Temporary Lay-Off/Floating Status?

20. What Happens if my Employer Cannot Return Me to Work After the 6 Months (for Direct), or 3 Months (for Agency Hired Workers)?

21. How do I Compute for my Separation/Retrenchment/Retirement Pay Again?

22. Can an Employer Reduce my Wages and Benefits?

BONUS QUESTION: Do I Have to Return the SBWS Ayuda if I Resigned in GCQ?

22 MOST COMMON QUESTIONS ASKED BY EMPLOYEES DURING GCQ ANSWERED

1. Now that there’s more confirmed cases of COVID-19 in the Philippines, are private companies mandated to pay Hazard Pay?

No, Private Employers are NOT mandated to pay Hazard Pay. If they did pay you a Hazard Pay to come into ECQ to report, then they can remove it at any time because this pay is a management prerogative and not prescribed by law.

The only mandated hazard pay was for those Government personnel reporting for work during the Enhanced Community Quarantine Period. Only those who report to work can avail, and there’s no instruction yet whether this Hazard Pay is continued beyond the ECQ.

COVID-19-Hazard-Pay-Guidelines

2. I have worked for my Employer for more than 10 years. But I need to resign for my health. Do I get separation pay?

It does not matter how many years you’ve worked for your employer. It can be 1 year to 25 years. However, if you voluntarily resigned, your Employer DOES NOT NEED to give you a separation pay, regardless on how many years of your tenure. 

Here are the people employers do NOT need to give Separation Pay:

  • End of Contract Employees, regardless of Contractual, Fixed Term or Project Based
  • Probationary Employees who did not pass the standards for regularization
  • Employees who resigned from their work, regardless of tenure
  • Employees who were terminated for Just Causes:

Just CausesSource: Department of Labor and Employment, October 2017

The only exception is except the Separation Pay is stipulated in your employment contract or Collective Bargaining Agreement or based on established employer practice in the company.

IMPORTANT: If you are terminated for the above-mentioned reasons — end of contract, probationary, Just Causes, or resigned — you are NOT qualified for the SSS Involuntary Unemployment Benefit. So please do not pester your HR for a Certificate of Termination for Authorized Causes. You can however, ask for a Certificate of Employment (COE). 

3. Who are the Only Employees qualified for Separation Pay?

IMG_3965

These are the only people who are Qualified for Separation Pay:

Reasons

In other words, you have been terminated due to AUTHORIZED CAUSES, which is not the Employee’s Fault. These are as follows:

Authorized

If you are one of those who were terminated due to Authorized Causes, here’s an Excel I’ve made to help you compute how much you will get if you got Retrenched, Retired or Redundant. It’s in Excel so is not Mobile Friendly. Please use your desktop to access.

Retirement Pay Calculator

Download the Excel Here: Final Retirement Pay Calculator (TinainManila.com)

DISCLAIMER:  This online calculator is made available solely for the convenience of public. It follows the SSS schedule of contribution tables and is based on the author’s own interpretation. It provides calculations based on the information you provide. All data entered are not stored. It is suggested, however, to clear your browser cache after completing your transaction.

You can also avail of the SSS Involuntary Unemployment Benefits if you are terminated for Authorized Cause. You can read up on how to apply for it here.:

SSS Unemployment

4. Can a Company Fire Employees During ECQ or GCQ?

Yes — The Company can terminate any employee at ANY TIME so long as the Company follows Due Process. I have written about it extensively last May, HR TALK: “I was terminated during ECQ! What now?!” and 11 Other Questions Answered About Getting Fired in the Philippines

retrenchment-1200x600

Emerhub has probably the clearest infographics on how to properly terminate an Employee:

How to terminateSource: Emerhub

For Just Causes, you have to follow the Twin Notice Rule as above. The Final Pay should be given within 30 days after successful company clearance as stated in Labor Advisory No. 6, Series of 2020.

Twin Notice RuleSource: Roi Xcel, Slideshare

For Authorized Causes, all you have to do is provide DOLE and the Staff a Notice of Dismissal 30 Days before Termination.  And pay them the correct separation pay if any.

Authorized CauseSource: Roi Xcel, SlideShare

5. Does a Company Need to Report All Employees Who Departed to DOLE?

Companies do NOT NEED to report to DOLE employees who voluntarily resigned, went AWOL, or were terminated due to Just Causes (Their Fault).

However, DOLE has asked companies to report employees who were terminated For Authorized Causes (30-day Notice), were on Flexible Work Arrangement which includes Work-from-Home/Telecommuting (7 Days-Notice). This is a clear DOLE via their Labor Advisory 17-A, Series of 2020:

Labor Advisory 17-ACompanies can report by using the newest RKS Form 5 Establishment Report (DOWNLOAD HERE) last June 2020. It looks like this. You have to use the correct, latest version to be considered as properly filed. Email it to the DOLE branch where your office is located. For email addresses, here’s the details from the DOLE website. Please followup that this has been acknowledged by DOLE by email:

RKS Form 5

Page 2

Download Form: Revised Establishment Report Form

6. Patay! The Company has not Reported to DOLE? Papaano na?!

The law is clear — If you’re going to remove any employee for Authorized Causes, you need to give DOLE AND the Employee 30 day notice.

I suggest you inform both immediately. Otherwise, while your cause for termination is valid, ma-tetechnical ang company for not following due process.

DO IT ASAP!

7. How Soon Can You Rehire After a Retrenchment or Redundancy?

REMINDER: Please Terminate Employees following Good Faith

retrenchment (1)

If you terminate employees after a Retrenchment or Redundancy, you should not be quick to hire another person for the same positions. Here

For retrenchment, the reason should not be there anymore then you can hire. Kasi for retrenchment it is to prevent future losses, how long can you reverse that? It’s a matter of evidence. There is no jurisprudence on that but if done in a short while, then it will be taken against you.

For redundancy, obviously you cannot hire for the same position kasi nga abolished. If ever you revise the position it should not look like you abolished just to terminate the last one. Fine line.

Wait, What’s the Difference Between Redundancy and Retrenchment?

Thanks to Bab Research for this wonderful chart:

Redundancy vs. Retrenchment

Here’s their Youtube Page if you want to Like and Subscribe:

Bab Research

8. There’s Too Many COVID-Cases Nowadays. Takot Ako for my Life. Can I Not Report To Work?

Yes you may — But your company is also allowed to terminate your employment for Just Causes following due process.

DOLE has now allowed companies to operate if they follow minimum DOLE and DTI Health Guidelines for COVID-19 Prevention.

Labor 17

I have written about these Guidelines previously last May 2020 and have included the forms needed to ensure you are DOLE compliant, which includes asking every visitor to submit a Health Checklist:

Visitor’s Health Checklist

Visitors Checklist
Downloadable Form Here: VISITOR’S HEALTH CHECKLIST – General.

Hence, if the employees do not report when asked, company will only need to follow due process to terminate. All they have to do is follow the Twin Notice Rule. This is 100% legal.

This may fall under Just Cause of Termination — Insubordination, Willful Disobedience and/or Gross Neglect of Duties.

All HR has to do is issue a:

  1. Return to Work Order (RTWO)
  2. Notice to Explain (NTE)
  3. Another warning and Notice to Explain just to be sure – this is just for us.
  4. Administrative Hearing
  5. Notice of Termination for Just Causes due to Refusal to Report to Work

BUT WHAT ABOUT ME BEING IN IMMINENT DANGER?

So long as the company complies with the DTI and DOLE Interim Guideline Workplace Prevention and Control of COVID, workers cannot say that there is imminent danger in the workplace without any proof.

Hence, employees cannot use the excuse that “takot ako sa buhay ko,” to refuse to go to work without any repercussions. For them to use the excuse that their workplace is dangerous, DOLE has to first determine that the workplace is indeed dangerous, and issue a Work Stoppage Order to suspend operations.

Stoppage

Without the Work Stoppage Order from DOLE, employees must report if asked by their employees. If they went absent, employers have the right to issue warnings and sanctions to get them to come in. If there is imminent danger, the employees and/or safety officer can report the employer to DOLE. But you still have to report until DOLE comes in, inspects and issues a Work Stoppage Order.

Stoppage2

9. Transportation is inconvenient. Can I Not Report Because There’s No Public Transportation Available?

DOLE has mandated Employees to provide for shuttle buses or accommodation if they want to force the Employees to report during ECQ and MECQ.

However, for GCQ, there’s no advisory yet. In the absence of any formal advisories, the provision of shuttle services and decent accommodation is NOT mandatory, and is only requested from employers whenever feasible.

shuttle

So no, you can’t use the “lack of shuttle buses and accommodation” as a reason why you can’t go to work. To be fair, since we have re-opened operations in June 1, all our staff have reported. The only staff who did not report was aged 19 years old and was not allowed by the LGU to go out.

Kung gusto, may paraan. Kung ayaw, maraming dahilan. 

transportPhoto Source: ABS-CBN News

10. My Employer is asking Me To Give Them a Negative COVID-19 Test Result before I am Asked to Report. Who will Pay for It?

Labor Advisory No. 18-A is clear on who pays for the rapid test/swab test — The Employer. If the staff is an agency hired employee, it is the PRINCIPAL who will have to pay for the costs of COVID-19 prevention and control measures, not the agency.

Test

If the Employer does not have budget for the test, which by the way is NOT mandatory, then the employee can have themselves tested in the local barangay or LGU which offers free COVID-19 testing.

11. Is COVID-19 Testing Mandatory?

Nope.

Again, unless the LGU specifically requests for it, companies do not need to test their employees unless they are symptomatic. All the company has to do is require the employee to file their Health Checklist Form everyday, ensure that the entire company is following the DTI and DOLE Health Rules and follow proper procedure when a worker is suspected to be positive.

We did however get our Innovita Rapid Tests from Project Ark’s Lifecore at Php 450 per box + VAT. It is straight from the source, which is why we got ours for cheaper. For everyone’s peace of mind, we tested our staff at the first day of work, all of whom turned out to be negative.  Again, testing is not mandatory.

LifeCore
License To Operate as Medical Device Importer per LTO 3000006146613
FDA Approved Brand: Innovita 2019-nCoV Ab Test (Colloidal Gold)
Sets Per Box: 40 pcs
Email to Order:  opae.arkorders@gmail.com
Look for: Avelaine ((+632) 8889-1129 local 124)

Innovita

The test takes 2.5 to 5 minutes to do. It’s actually very easy.

How to use
Source: PR Newswire

NOTE: You have to have a Certified Physician to do the test to have an official Certification.

The Cheapest RT-PCR Test that I’ve found was at Chinese General Hospital:

covid

CGH Swab Test Cost Details:

  • Drive Thru – Php 5,500.00 (You must first pre-book on their website)
  • Walk-in Cash – Php 5,000.00 (Mon – Fri)
  • First Come First Serve Walk-in with Philhealth, ONLY Php 1,600.00

Forms are available with the Guard need 2 valid Government Issued ID
First Come First Serve With additional discount for PWD / Seniors

Telephone: Chinese General Hospital: +632-8711-4141

Website: https://cghmc.com.ph/online/booking/

In Makati, it’s ₱1,500.00 for rapid test and ₱6600 for swab. Call first before proceeding.

Just to add, they have two kinds of swab test.

1. ₱12,000 – results out in 6-12 hours

2. ₱5,000 – 5,500 – results out in 3-5 days

You can check the results online.

12. We have a Staff who Refused to Undergo the COVID-19 Test? Babayaran na namin, tapos, ayaw pa? What Should We Do?

This is in violation of RA 11332, Section 9, An Act Providing Policies and Prescribing Procedures on Surveillance and Response to Notifiable Diseases, Epidemics, and Health Events of Public Health Concern, and Appropriating Funds Therefor, Repealing for the Purpose Act No. 3573, Otherwise Known as the “Law on Reporting of Communicable Diseases”as follows:

RA 11332

Companies can compel the staff to medical examination and tests in lieu of everybody’s public health. Because if that person is positive, and it was not disclosed properly, then it would endanger everybody’s lives.

However, companies must still follow due process when a staff makes the refusal. This is the same when an employee refuses to Subject Oneself to Physical Examinations — You can actually give him an NTE to Explain His Refusal. This is under INSUBORDINATION, and if not corrected, a terminable offense.

This is a Sample Letter that can be issued by a company to an Employee who refuses medical attention.

Refusal For Medical Examination
This is scanned and copied directly from Atty. Elvin Villanueva and Sheila Marie P. Emata’s Book: Human Resource Forms, Notices & Contracts that’s published by Central Books. You can buy this book as it contains a wealth of other forms you can use for day to day.

Addendum from Martin Sanderson who PM’d me a clarification:

“Yes, I know the content of RA 11332, under Section 9, but the provisions should be read properly, if applied to an individual. As it says: “(e) Non-cooperation of the person or entities identified as having the notifiable disease, or affected by the health event of public concern.”

Until such time as the person has been “identified” as having been infected with COVID-19, there is no violation of this law. Moreover, the government has already stated that it is not mandatory for workers returning to work to be tested. Which means the employer cannot make it mandatory either. In a press release regarding the Department Memorandum No. 2020-0220 on Interim Guidelines on Return to Work, issued on May 21, 2020, the Department of Health (DOH) reiterated that it is NOT an official requirement for employees to get tested before returning to work. They also reiterated that “neither is it expected that employers require their employees to get tested.”

This means that, while you can ASK nicely for your employees to take the COVID-19 swab test, you CANNOT insist on it. And for all those that agree to take it, the EMPLOYER is liable to cover the cost of the testing.

So what to do when an employee refuses? They can always not permit them to work, as this is a management prerogative. If the employee refuses to take the test, leave them on NWNP for another few weeks until they either comply or the need is over.

P.S. If the employee is found to have lied on the medical questionnaire, it is a violation that must be sanctioned, and is a termination offense in most cases.”

13. Oh NO! One of Our Staff Tested Positive in Rapid Test. What Do We Do?!

This is the Standard Operating Procedure if you discover that one of your staff tested positive in the rapid test:

Suspected

Source: DTI and DOLE Health Guidelines for COVID-19 Prevention

This is a reiteration of Labor Advisory No. 4:

Labor 4 - SOP

If somebody is tested positive by rapid test, you need another RT-PCR/Swab Test to ensure he is truly positive. The results will come out in 3 days or so.

Everybody present with suspected positive worker must be placed on home quarantine until the suspected worker’s Swab Test results come out. If the worker is from the province and there’s no way you can do home quarantine because they have no Manila home, you can book them in any of the following approved quarantine hotels around Metro Manila:

Quarantine Hotels

Prices range as follows — not as expensive as you think. You may have the option to pay also for the 3-meals a day food:

Prices of Hotel

The place of work must be thoroughly disinfected. After disinfection, the place of work can again be opened for the other batch of workers after 24 hours. This is legal. It is only the group of workers with the suspected positive worker who must be on home quarantine.

If the second test confirms the worker as positive of COVID-19, everyone present that day must stay at home for 14-days. If the second test shows a false positive, meaning, the worker is negative of COVID-19, everyone — including the suspected COVID-19 patient — can come back to work.

The COVID-19 Positive Patient with confirmatory RT PCR / Swab Test must be reported to the Barangay, LGU and DOH for proper contact tracing.

14. Will the Company pay for the 14-day Home Quarantine if due to COVID-19?

The Labor Advisory No. 4, Series of 2020 is clear — NO. It is still No-Work, No-Pay.

Labor Advisory No. 4

Sorry. While employers may provide financial assistance, it’s NOT mandatory. And an employee cannot compel the boss to pay them anything just because they have mouths to feed.

15. If I am positive of COVID-19, what is the Company Liable for?

If you do not have SSS, PhilHealth Coverage due to the fault of the employer, the employer will pay for your expenses from the time you got diagnosed up until the time you get well.

Labor 4 - Coverage
Source: Labor Advisory No. 4, Series of 2020

If you do have SSS and/or Philhealth Benefits, they will cover you in the event of getting COVID-19. For SSS, there’s the SSS Sickness Benefit (Requires: 3 months contributions within the 12-month period before the semester of sickness) and Employee’s Compensation (EC) Program.

In general, this is the extent of coverage you can get if you get COVID-19 — It’s not big but it’s not zero. There is aid. But we still need to help ourselves:

Coverage

Here’s more information about the PhilHealth benefits you can get if you have COVID-19:IMG_1775Anything beyond this, the government nor the company is not really liable. If the company has an HMO or a CBA, then the employee gets additional benefits.

However, please be conscious about the fine print in availing the benefits of an HMO. You need proper reporting and receipts to avail of HMO. If you get COVID-19, there are no cash outs but you may reimburse your expenses if you have an HMO or a CBA, depending on the content of the agreement.

coronavirustreatment1Image Source

So please do not be as quick to insist that you be hospitalized if you are asymptomatic. Please be careful, quarantine yourself properly, and enjoy the rest. Because if you are hospitalized, every single cost will be charged to the hospital bill — every swab test, PPE, medicine and room stay. If the employee is not careful, he can be very well liable for the hospitalization bill that’s not covered by SSS, Philhealth and HMO.

16. I am Pregnant or a Senior Citizen, and I was Placed in Floating Status. Is this Legal? 

Priority staff

Yes, because the government considers senior citizens and pregnant women as high risk. Thus employers are encouraged — but not mandated — to offer WFH opportunities.

At riskSource: Workplace rules set to cut spread of COVID-19, May 2020

If there is no work that can be assigned, management has no choice but to place that staff in floating status under No Work No Pay. Once again, we refer back to Labor Advisory No. 4, Series of 2020:

Labor Advisory No. 4

17. Is the Employer Not Obliged to Give Employees Work From Home Opportunities?

Let’s make it clear: Work from Home (WFH) is a Privilege — NOT an Obligation.

The Republic Act No. 11165 or the Telecommuting Act gives Employers the OPTION to offer employees Telecommuting or WFH as an alternative work arrangement which employers may implement upon agreement with their employees, subject to mutually agreed terms and conditions. Essentially, the new law sets out the rights and duties of the employers and employees when a telecommuting program is in place. It further provides for the resolution of grievances arising from the telecommuting program.

WFHImage Source: IT Chronicles

It is an OPTION that employers can do. However, it is not mandatory unless the employment contract states that the employee is a work-from-home from the very beginning. Even with COVID-19 on the rise, WFH is still a benefit that’s graciously given but can also be taken away. So if this type of arrangement does not work for the Employers anymore, they may remove this privilege.

18. Wait, is Floating Status Even Legal?

Martin Sanderson shares his thoughts on Floating Status in his comprehensive article, Suspension of Business Operations. It’s a worthwhile read. But if you don’t like to read, I can tell you for a fact that yes, it is legal to place employees under floating status with conditions. This is the Jurisprudence for Article 301, When an Employment is Not Deemed Terminated:

Article 301

The Supreme Court in the case of Crispin B. Lopez vs. Irvine Construction Corp. and Tomas Sy Santos (GR 207253, Aug. 20, 2014) through Associate Justice Estela Perlas-Bernabe, gives an enlightening explanation about lay-off as a valid management prerogative, to wit:

“It is defined as the severance of employment, through no fault of and without prejudice to the employee, resorted to by management during the periods of business recession, industrial depression, or seasonal fluctuations, or during lulls caused by lack of orders, shortage of materials, conversion of the plant to a new production program or the introduction of new methods or more efficient machinery, or of automation. Elsewise stated, lay-off is an act of the employer of dismissing employees because of losses in the operation, lack of work, and considerable reduction on the volume of its business, a right recognized and affirmed by the Court. However, a lay-off would be tantamount to a dismissal only if it is permanent.

“When a lay-off is only temporary, the employment status of the employee is not deemed terminated, but merely suspended. The lay-off, being an exercise of the employer’s management prerogative, must be exercised in good faith – that is, one which is intended for the advancement of employers’ interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. xxx xxx xxx Six months is the period set by law that the operation of a business or undertaking may be suspended thereby suspending the employment of the employees concerned. The temporary lay-off wherein the employees likewise cease to work should also not last longer than six months. After six months, the employees should either be recalled to work or permanently retrenched following the requirements of the law, and that failing to comply with this would be tantamount to dismissing the employees and the employer would thus be liable for such dismissal.” (Emphases supplied).

Source: Manila Times, PAO Persida Acosta, September 29, 2019

Direct employers can place their employees on floating status for 6 months. But for agency-employed workers who are follow DO 174, floating status is only for 3 months.

If an Employer wishes to apply for floating status, here are the steps: HR Talk: How to Apply for Flexible Work Arrangement (FWA), Temporary Closure, Retrenchment and Permanent Closure. Please note that you need to use the latest RKS 5 Form.

RKS Form 5

Page 2

Download Form: Revised Establishment Report Form

When does the Count of 6 Months Start?

The count of the suspension starts on the first day of the suspension period, which occurs AFTER the 30-day notice period (or immediately on the effect of the closure of business on March 17, for those companies that closed with their employees on NWNP).

Time to start

If the staff were already on floating status due to them being in BPO — and if the BPO got hit with the ECQ and hanggang ngayon, floating ba din sila — the BPO must make a decision to either ask the staff to return to work or retrench. If there’s no work to be given and they cannot give the staff work, retrenchment is the only option.

IMPORTANT: DOLE has NO formal announcements yet if the ECQ is counted in putting staff on floating status for regular employees. 

My lawyer says that the meter for the 6 months start when the company informs DOLE by submitting the RKS 5 Form.

Even when calling the DOLE Hotline, they cannot give me an answer as to whether the ECQ is included in the counting of 6 months.

The only notice that says ECQ is included relates to Probationary Employees in Labor Advisory No. 14-A, which does not count the ECQ (if unworked) to the 180-days count of employment.

Labor 14-A

So awaiting labor announcement regarding this.

REMINDER: RETRENCHMENT AND REDUNDANCY MUST BE DONE IN GOOD FAITH

Call-center

Companies always have to exercise good faith when terminating employees. In G.R. No. 235873 – Enrique Marco G. Yulo vs. Concentrix, jurisprudence indicates:

Essentially, redundancy exists when an employee’s position is superfluous, or an employee’s services are in excess of what would reasonably be demanded by the actual requirements of the enterprise. Redundancy could be the result of a number of factors, such as the overhiring of workers, a decrease in the volume of business, or the dropping of a particular line or service previously manufactured or undertaken by the enterprise.33 In this relation, jurisprudence explains that the characterization of an employee’s services as redundant, and therefore, properly terminable, is an exercise of management prerogative,34 considering that an employer has no legal obligation to keep more employees than are necessary for the operation of its business.35

Nevertheless, case law qualifies that the exercise of such prerogative “must not be in violation of the law, and must not be arbitrary or malicious.”36 Thus, following Article 298 of the Labor Code as above cited, the law requires the employer to prove, inter alia, its good faith in abolishing the redundant positions, and further, the existence of fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished.

“To exhibit its good faith and that there was a fair and reasonable criteria in ascertaining redundant positions, a company claiming to be over manned must produce adequate proof of the same.”37

Thus, the Court has ruled that it is not enough for a company to merely declare that it has become overmanned. Rather, it must produce adequate proof of such redundancy to justify the dismissal of the affected employees, such as but not limited to the new staffing pattern, feasibility studies/proposal, on the viability of the newly created positions, job description and the approval by the management of the restructuring.38″

19. Can an Employee Find New Work When Placed in Temporary Lay-Off/Floating Status?

Depending on the Contract of Employment.

Temporary

In our company, we have a tight clause that prohibits employees for moonlighting, sidelining or accepting any other employment while being employed with us. If they accept other jobs, this is equivalent to resigning from their work, and we will send them an Notice to Explain (following due process) to explain why they have disobeyed this rule.

Meanwhile, there are some companies who are okay with employees finding another job while on temporary leave.

To be sure, coordinate with your HR to see what your company says about you taking another job.

20. What Happens if my Employer Cannot Return Me to Work After the 6 Months (for Direct), or 3 Months (for Agency Hired Workers)?

If not, then your Employer will pay you Separation Pay following your Years of Service.

And once again, you can apply for the Involuntary Unemployment Benefit of the SSS.

More infor

21. How do I Compute for my Separation/Retrenchment/Retirement Pay Again?

Again, here’s an Excel I’ve made to help you compute how much you will get if you got Retrenched, Retired or Redundant. It’s in Excel so is not Mobile Friendly. Please use your desktop to access.

Retirement Pay Calculator

Download the Excel Here: Final Retirement Pay Calculator (TinainManila.com)

DISCLAIMER:  This online calculator is made available solely for the convenience of public. It follows the SSS schedule of contribution tables and is based on the author’s own interpretation. It provides calculations based on the information you provide. All data entered are not stored. It is suggested, however, to clear your browser cache after completing your transaction.

For Retrenchment, I thank Richard de Dios for simplifying the calculation for all of us. Here’s how he computed the severance pay of a 22-month tenured employee:

“Ang 22 months is equivalent to 2 years tenure by virtue of the provision that a fraction of 6 months or more is considered 1 year.

Then said employee is only entitled to 1 month separation pay (1/2 per year of service x 2 years). The minimum 1 month applies to those with less than 1.5 years of tenure since they will only be entitled to 1/2 month pay if the entitlement is 1/2 month per year of service”

In short:

1 mo – 2 yrs 5 mos = 1 month pay

2 yrs 6 mos – 3 yrs 5 mos = 1.5 months pay

3 yrs 6 mos – 4 yrs 5 mos = 2 months pay

4 yrs 6 mos – 5 yrs 5 mos = 2.5 months pay

Thank you Sir Richard! ❤️

Please be reminded that there is NO SEPARATION PAY given to the following employees who left for the following reasons:

  • End of Contract Employees, regardless of Contractual, Fixed Term or Project Based
  • Probationary Employees who did not pass the standards for regularization
  • Employees who resigned from their work, regardless of tenure
  • Employees who were terminated for Just Causes:

Just CausesSource: Department of Labor and Employment, October 2017

22. Can an Employer Reduce my Wages and Benefits?

Under Labor Advisory No. 17, Series of 2020, this is allowed so long as there’s written agreement between the Employer and Employee:

IMG_2025

No matter what the reason, an employer cannot reduce the wages or benefits after a verbal agreement. It must be written and with the employee’s consent before the pay or benefit cut is done. If the agreement is after the pay cut, the employer is still liable for the amount if and when the employee complains.

This pay cut is only for 6 months ha. Huwag abuso and must be done in good faith.

BONUS QUESTION: Do I Have to Return the SBWS Ayuda if I Resigned in GCQ?

YES — You have to return the aid if you resigned in ECQ and MECQ.

NO — You do not need to return the aid if you resigned in GCQ.

Under the DOF-SSS-BIR Joint Memorandum Circular No. 001-2020, as amended, on the SBWS program, the following are required to return their SBWS subsidy:
  1. Employers who fail to maintain the employment status of their employee beneficiaries within the original SBWS Period of March 17, 2020 to May 31, 2020 must return to the government the SBWS amount granted to these employees.
  2. Employee-beneficiaries who resign during the period when enhanced community quarantine or modified enhanced community quarantine is imposed in the region or local government unit where the place of business of his employer is found.
  3. Employers who misrepresented in their application any material fact relevant to the eligibility of their employees, such as, but not limited to the following:
    1. those who paid wages/salary for the whole of ECQ to all employees;
    2. those whose employees were not prevented from going to work nor unpaid for at least two weeks (straight 14 consecutive days) during the ECQ;
    3. those who applied for separated employees;
    4. those whose employees voluntarily went on the following types of leave: maternity leave, paternity leave, study leave, sabbatical leave, and leaves of the same time — for the entire duration of the ECQ, whether with or without pay;
    5. those whose employees are recipients of SSS unemployment benefits due to COVID-19; or
    6. those whose employees have settled or in-process SSS final claims (funeral, retirement, death, and total disability).
  4. Employers of employees who are DOLE CAMP beneficiaries who received the full amount of the SBWS Second Tranche.
For employees who received both the DSWD’s SAP and SBWS, they should approach their Municipal Social Welfare and Development Officer to discuss steps for refunding the DSWD’s SAP-ESP.

Source: Social Security System Facebook

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13 Responses to HR Talk: 22 Most Common Questions Asked by Employees in GCQ Answered

  1. Ivy says:

    Hi, Tina! Thanks so much for writing this blog. So informative! Always a God-send to us small entreps. Enjoyed reading each provision. Have a question re your Item #20. “What Happens if my Employer Cannot Return Me to Work After the 6 Months (for Direct), or 3 Months (for Agency Hired Workers)? Ans: If not, then your Employer will pay you Separation Pay following your Years of Service.” What if the company closed down finally due to business losses that can’t be recouped during the 6 month period when the employee was on floating status? Will the company still pay her or him Sep Pay? I have clients from my distribution business who are in that situation.

    Like

    • Tina in Manila says:

      Yes, they still have to pay separation pay. Otherwise the employees will still complain to DOLE and the employers will still be liable to pay. The company may also have to pay additional for the trouble.

      If talagang walang wala na ang pera, company has to prove it. Otherwise babayaran pa din. Walang takas sa batas so if kaya, bayaran na lang para tapos na.

      Like

  2. Ivy says:

    Thank you Tina! Stay safe!

    Like

  3. KC says:

    Thank you so much for taking the time to write te this.

    I would just like to ask, what if we offer our employees a dorm free of charge for their safety and so they don’t need to commute anymore, but they don’t want to stay there? Is it okay to ask them not to report to work first? We feel It’s too risky for them to commute daily and a shuttle isn’t feasible for us since they don’t live near each other.

    Like

    • Tina in Manila says:

      Oh before offering any benefits like this, I suggest you make a Memorandum of Agreement para walang labuan. Please make them sign and make dorm use conditional to their employment with your company. Make it clear who pays for the water and electricity, repair, etc. Have your lawyer check on it.

      Re: reporting to work, it’s up to management on what to do with the staff. You may put them on forced leave due to x, y, and z reasons. However if so, it’s better if they are the ones who requested for the forced leave and made the request in writing.

      Personally, I like everything in writing and if ayaw nilang pumasok, follow due process to document their refusal. Only after due process shall management decide to put them in forced leave or to terminate. Para kahit magreklamo, you have documentation that their pagalis is not due to company’s fault but the staff’s fault.

      Like

    • Tina in Manila says:

      Oh before offering any benefits like this, I suggest you make a Memorandum of Agreement para walang labuan. Please make them sign and make dorm use conditional to their employment with your company. Make it clear who pays for the water and electricity, repair, etc. Have your lawyer check on it.

      Re: reporting to work, it’s up to management and how to pakiusap the staff. Make it very clear you’re putting them on forced leave due to x, y, and z reasons. Best if they are the ones who don’t want to report to work and ask for management to let them.

      Personally, I like everything in writing and if ayaw nilang pumasok, please offer a Report to Work, Notice to Explain, Invitation to Admin Hearing and Notice of Termination. You can also put them on floating status for 6 months if they are directly hired.

      Like

  4. Joyce says:

    Hi ms.tina does the ecq period counted to the employees service work rendered even though they did not reporr to work due the store closure at that time? Thanks!

    Like

  5. Dianne says:

    Hi Ms Tina, we have a new employee started to work in our company last Feb 24, 2020 then ECQ happened can we count the ECQ months cuz the management would like to regularize him after 6 months so by August 24. During ECQ he sometimes report to work as messenger and maintenance officer. Thank you,.

    Like

    • Tina in Manila says:

      No, the ECQ is not counted if he did not come to work and company was closed. Count 180 days from the time he worked to now and deduct the entire ECQ if he did not work.

      Make sure you evaluate him as early as today. See if he is fit for regularization or not. If he is fit, regularize him. If not, do not prolong.

      Like

      • Dianne says:

        Hi Maam Tina,
        The company wants to regularize him including po yung ECQ days. I mean in favor po yun sa employee.

        Like

        • Tina in Manila says:

          You can regularize any probationary before the 180th day. Hindi naman kailangang sagarin. 🙂

          I have regularized people before on their 4th month because they are good. Why wait?

          Like

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