Quick and Short Answer:
Rule of Thumb: There are two distinct type of Terminations — 1) Termination for Just Causes, and 2) Termination for Authorized Causes.
So this blog post will summarize the different ways you can properly terminate a staff in the Philippines as follows:
- What is Just Causes of Termination? How Can Companies Terminate Using Just Causes (And Pay No Separation Pay)?
- So what is the proper procedure of Terminating a Staff Under Just Causes?
- Now, what if the employee did not show up to the administrative hearing. Can he later say that the company did not follow due process?
- Can the employee not be fired if he was able to defend himself properly during the admin hearing?
- Is the administrative hearing dispensable?
- If I Was Terminated for Just Causes, Do I Get Separation Pay?
- Wait, What is the Difference of Final Pay to Back Wages? How Do You Define Back Wages?
- What is the Authorized Cause of Termination? How Is It Different From Just Causes?
- How much do I get for Separation Pay for Authorized Causes?
- Can an Employee Asked to Be Separated for Authorized Causes Just Because He Got Sick of COVID-19?
- Got Terminated — How Do I Avail of the SSS Involuntary Unemployment Benefits?
- What to Do Post Termination? Should I complain about my Termination?
Since mahaba haba yung usapan, let’s start shall we?
1. What is Just Causes of Termination? How Can Companies Terminate Using Just Causes (And Pay No Sepaaration Pay)?
Simply said, Termination for JUST CAUSES is when the Employee is at fault.
This means that under Termination for Just Causes, si employee ang nagkasala or nagkaroon ng offense, or hindi niya ginagawa ang trabaho niya, which is why he/she was terminated from the company.
Please note that such Just Causes for Termination is LEGAL and VALID, so long as company follows PROPER DUE PROCESS when terminating a staff.
The following are considered as just causes:
- Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
- Gross AND habitual neglect by the employee of his duties (Author’s Note: Need to be gross AND habitual ha. Hindi yung one time lang tapos tinanggal na agad);
- Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
- Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and
- Other Analogous cases.
So yes, common reasons why an employee can be fired for Just Causes (IMPORTANT: Following due process) include:
- If the staff refuses to report to work or goes AWOL: I have wrote about this extensively in HR Talk: What to do if the Staff Refuses to Report to Work.
- If you’re Caught Stealing: In the case of Reno Foods Inc. vs. Nagkakaisang Lakas ng Manggagawa – Katipunan (G. R. No. 164016, March 15, 2010; ponente, Associate Justice Mariano del Castillo), the Supreme Court stated that “theft of company property [is] a serious misconduct.”The Supreme Court said “a criminal conviction is not necessary to find just cause for employment termination” (Supra). Hence, you may terminate your employee on the ground of Serious Misconduct without the need to file a separate criminal action against the employee. I usually would though just to be safe.
- Gross AND Habitual Lates: Note that if the person is only late once, you can’t fire him. However, you can build up your case in firing the employee if he is GROSSLY and CONTINUALLY late, even if he’s a regular employee for decades. All you have to do is document all the lates, note that there is no improvement, and follow due process.As mentioned in Carvajal vs. Luzon Development Bank and/or Ramirez, GR 186169, Aug. 1, 2012, Ponente: Associate Justice Jose Portugal Perez:“Punctuality is a reasonable standard imposed on every employee, whether in government or private sector. As a matter of fact, habitual tardiness is a serious offense that may very well constitute gross or habitual neglect of duty, a just cause to dismiss a regular employee. Assuming that petitioner was not apprised of the standards concomitant to her job, it is but common sense that she must abide by the work hours imposed by the bank.”
- Grossly and habitually FAILING TO REACH your Performance Metrics or Quota:
In PNOC vs Buenviaje (GRs 183200-01, 183253 and 183257; June 29, 2016; Ponente: Associate Justice Francis Jardeleza), the Supreme Court explained that failure to meet work goals or work quotas is tantamount to gross and habitual neglect of duty, which is a just cause for dismissal:“‘Gross inefficiency’ is closely related to ‘gross neglect,’ for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business. Failure to observe prescribed standards of work or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. This management prerogative of requiring standards may be availed of so long as they are exercised in good faith for the advancement of the employer’s interest.”
There are many other reasons why an employee may be terminated for Just Causes without separation pay. The above is just a list but not an extensive list. You may consult legal jurisprudence for other offenses that are included in the Just Causes for Termination.
So what is the proper procedure of Terminating a Staff Under Just Causes?
Very very important: If you are to terminate a staff following Just Causes — to prevent any allegations of Illegal or Constructive Dismissal, company MUST 1) ensure that the guilt of the concerned employee must be proven or prima facie evidence is established and 2) The Company follow the Twin Notice Rule and Due Process BEFORE terminating a staff.
The first condition is obvious — guilt of the concerned employee is proven or prima facie evidence is established. Usually naman, if you terminate an employee for Just Causes, may kasalanan nga yung staff. What employers usually forget is the second part — following Procedural Due Process starting with the Twin Notice Rule.
What is the Twin Notice Rule and what we Call Procedural Due Process?
a) Company must serve employee a WRITTEN NOTICE, specifying the grounds for termination, and giving said employee reasonable opportunity or five (5) days within which to explain his side. This written Notice is called a Notice to Explain (NTE), and should contain:
- The SPECIFIC grounds for termination based on the Article 297 of the Labor Code and company policies, if any;
- Detailed narration of the facts and circumstances that will serve as basis for the charge against the offending employee. Must be filled with facts; a general description of the charge will NOT be enough;
- A directive that the employee is given opportunity to submit a written explanation within a reasonable period, which is at least 5 CALENDAR DAYS. The 5 days will give the employee enough opportunity to study the accusation, consult his/her lawyer, and respond to the NTE.
IMPORTANT: Hindi pwedeng call, text or Facebook Messenger lang. The notice has to be acknowledged by handing it to the employee physically, or if the employee is not reporting to the office, to the employee’s last known residential address.
b) If this is a termination, it is highly recommended that the employer schedule a hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him. This is called an Administrative Hearing;
My friend and HR Guru Sonnie Santos shares his thoughts on how to properly conduct an administrative hearing. You can read what he wrote on this link.
Please ensure that there’s minutes to the meeting and an attendance sheet to ensure that the administrative hearing was conducted.
This is a time where the employee is given a chance to present his testimony, defend himself and provide evidences as to why the charges against him. This gives the employee a fair chance to be heard, and he can even bring his lawyer to the hearing for added protection.
Now, what if the employee did not show up to the administrative hearing. Can he later say that the company did not follow due process?
Nope, by holding an administrative hearing, the company shows good faith in allowing the employee’s side to be heard. If the employee fails to show, he waives his right to have his side heard, leaving the company to make a decision based on the facts presented.
Can the employee not be fired if he was able to defend himself properly during the admin hearing?
Absolutely — the company can only fire the staff if the offense was true and valid. If it’s just a case of mistaken identity or if the staff can prove that he himself did not do the offense, there is no reason to discipline the staff.
c) After the hearing and giving the employee’s a chance to explain, if the employer decides to terminate the employee, a WRITTEN NOTICE OF TERMINATION must be served to the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. Also sent to the employee’s last known address.
Is the administrative hearing dispensable?
G.R. No. 117453, Autobus Workers Union and Ricardo Escanlar vs. NLRC and Mr. Robert Ong (June 26, 1998) answers this question:
The Supreme Court decided: “The twin requirements of notice and hearing constitute the essential elements of due process. Due process of law simply means giving opportunity to be heard before judgment is rendered. In fact, there is no violation of due process even if no hearing was conducted, where the party was given a chance to explain his side of the controversy. What is frowned upon is the denial of the opportunity to be heard.19
A perusal of the record reveals that petitioner was duly notified of the charges against him and given the opportunity to defend himself via a written explanation and thereafter, to adduce evidence on his behalf during a formal hearing where he was represented by a counsel of his own choice.
A formal trial-type hearing is not even essential to due process. It is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based.20 This type of hearing is not even mandatory in cases of complaints lodged before the Labor Arbiter.21.”
IMPORTANT: Let me repeat as this is very very important:
- The Company must serve TWO written notices — one to inform the employee of their charge, and the other to terminate the employee — before dismissing a staff based on just cause. While a company who fails to comply with the procedural due process does NOT make the dismissal “illegal,” not following the Twin Notice Rule entitles the employee to the payment of damages. It is also important to emphasize that the twin notices must be WRITTEN. A verbal notice is equivalent to no notice.
- If you simply terminate a staff without any due process — For example, you simply fired a staff for stealing without following the twin notice rule and due process — it is highly likely that DOLE/Labor Arbiter will indicate that the Termination as constructive, illegal or unjust. If so, the employee unjustly dismissed shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full back wages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
2. If I Was Terminated for Just Causes, Do I Get Separation Pay?
LONG STORY SHORT: Employees Fired for Just Causes are NOT Entitled to Separation Pay. Here are the people who do not get separation pay when terminated:
- Probationary employees who were terminated by their 180th day for failing to reach the standards of regularization = No Separation Pay
- Employees who resigned = No Separation Pay
- Contractual Employees or Project Employees who has reached the end of their contract = No Separation Pay
- Employees who went AWOL or were fired for Just Causes = No Separation Pay
You may scream, cry and complain to DOLE/Tulfo or NLRC, but if you were fired for Just Causes and the company follows the Twin Notice Rule and Due Process to terminate you, you WILL LOSE THE CASE. All expenses you spent running back and forth to DOLE/NLRC/Tulfo will be patapon lang, but no amount of crying and yelling will get you any more than your Final Pay, which by the way is due you.
IMPORTANT: If you get terminated via Just Causes, there is ZERO Separation Pay even if you have been with the company since you started, or have been working there for 50 years.
3. Wait, What is the Difference Between Final Pay and Back Wages? How Do You Define Backwages?
Photo Source: Working Class of the Philippines Facebook Page
REMINDER: If you resign, your contract ended or you were fired for Just Causes, you are only entitled to your FINAL PAY.
Again, according to DOLE Labor Advisory No. 6, Series of 2020, Final Pay is defined as:
- Last Unpaid Salary: Money that you earned due to service rendered that the company has NOT YET paid you. In Tagalog, money na trinabaho mo na pero hindi pa bayad.
- Leave credits that’s convertible to cash, if applicable. Important conditions as follows:
- The only mandated leaves by law is the 5-Day Service Incentive Leave, which all employees earn AFTER ONE FULL YEAR of service. This is refreshable every year after and is convertible to cash.
- Anything above the 5-Day Service Incentive Leave is Company Discretion, and follows company policy: In short, anything that’s sobra the 5 day leave offered by the company AFTER one year of service follows management discretion. So consult with your HR or company handbook for management of Sick Leaves, Holiday Leaves and Vacation Leaves that goes above and beyond the 5-day Service Incentive Leave.
- Tax refunds if you overpaid your withholding tax, if applicable.
- Pro-Rata 13th Month Pay: If you are a rank-and-file, or is a manager but has enjoyed this benefit on the long-term, company must give you PRO-RATA 13th Month Pay. Condition is that they have worked for at least a month during the calendar year.
Source: National Productivity and Wages Commission Facebook page
- Minus Any Liabilities: In other words, the company can deduct any money that you owed the company. This includes any proven charges, bale or salary loans, advanced wages that were UNEARNED
- Minus Outstanding SSS Loans, if Any: And no, employees cannot complain about this company’s deduction. You agreed to this deduction when you applied for a loan with SSS. An Authority to Deduct is NOT needed to deduct your SSS Loan from final pay:
Backwages is what you get if you were illegally / constructively / wrongfully dimissed.
The base figure used for computing full backwages is the salary rate of the employee at the time of his dismissal up until the time the employee wins in his labor case. This means, parang binayaran mo yung employee ng buong sahod niya, kahit na tinanggal mo na siya sa company mo, because you have been found to illegally dismissed him/her.
Please note that CBA allowances and benefits are included in the computation of backwages. . This is because Article 279 of the Labor Code decrees that the backwages shall be “inclusive of allowances, and to his other benefits or their monetary equivalent.” Considering that the law does not distinguish between the benefits granted by the employer and those granted under the CBA, he should not be denied the latter benefits.
In short, if a company illegally dismisses a staff, and the staff files a formal complaint and wins the complaint, the following reliefs will be given to him/her:
- Reinstatement without loss of seniority rights,
- Payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement.
- If the reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of backwages.
4. What is the Authorized Cause of Termination? How Is It Different From Just Causes?
This chart will explain the big difference between Termination of Just Causes, and Termination from Authorized Causes:
The second type of termination is Authorized Causes — Meaning, the termination is NOT the fault of the employee. Hence, if management terminates the employee for Authorized Causes, the Company MUST pay the employee a Separation Pay based on their years of service. It also means that the Staff is qualified to avail of the SSS Involuntary Unemployment Benefits if he has enough hulogs:
Please see the chart above to determine whether you will get 1/2 month pay per year of service, OR 1 month pay per year of service. The figure depends on WHY YOU WERE TERMINATED FOR AUTHORIZED CAUSES, and is not because you cried or complained against your company to DOLE.
5. How much do I get for Separation Pay for Authorized Causes?
FREE Retirement or Separation Pay Calculator
I’ve taken an Excel course last year. And because I know a lot of you hate Math, I’ve done this simple Excel sheet to help readers compute for the Estimated Retirement or Separation Pay. You only need to input your 1) Reason for Termination, 2) Daily and Monthly Wages, and 3) Number Years and Months of Service and the calculator should do the work for you.
You can download the Excel below for free:
Download the Excel Here: Final Retirement Pay Calculator (TinainManila.com)
You’re welcome. Mind you, I’ve only started tinkering with Excel recently so there may be some bugs or corrections needed on the sheet. If there’s any corrections, please let me know so I can make changes to the formula.
But if you want to compute it manually, here’s how you do it. It’s very clear in Article 298, Authorized Causes of Termination —- For termination due to retrenchment or closure/cessation of operation its one month pay or 1/2 month pay for every year of service whichever is higher.
This is also mentioned in DO 147, Series of 2015. The separation pay should never be less than 1 month pay which means 30 working days pay. Lastly, the same is stated in Workers Statutory Financial Benefits Handbook released by DOLE-BLC.
The half month pay per year of service (minimum of 1 month) if the Termination is caused by:
- Retrenchment to prevent losses
- Closure of an Establishment not due to Serious Losses (In other words, sinarado lang ang company), or
- If the Employee is suffering from a disease not curable within the 6 month period.
Half month lang po yan. Hindi full month. This means that separation pay may NOT be as big as you think. It is NOT necessarily one month separation pay for every year of service. It is only half-month if you were retrenched, the business closed or if you suffered from a uncurable disease within a 6-month period.
While Retrenchment is a company prerogative, the addendum here is that The losses have to be PROVEN, and there is compliance with the Legal Procedure for Retrenchment.
REMINDER: You cannot just retrench people at will. It must be with proper discussion with management, and the retrenchment plan is decided beforehand. Pinagiisipan ang retrenchment ng mabuti, and the people you retrenched must be chosen based on reasonable standards and good faith. A lack of retrenchment plan opens your company to the risk of Constructive Dimissal complaints.
Compliance with the Legal Procedure for Retrenchment
In order to legally retrench employees, the following must be followed:
(1) Retrenchment is undertaken to prevent losses, which are not merely de minimis, but substantial, serious, actual, and real, or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer;
(2) The employer serves written notices both to the employees and the DOLE at least one month prior to the intended date of retrenchment;
(3) The employer pays the retrenched employees separation pay equivalent to one month pay or at least ½ month pay for every year of service, whichever is higher;
(4) The employer must use fair and reasonable criteria in ascertaining who would be dismissed and retained among the employees; and
(5) The retrenchment must be undertaken in good faith [Ariola v. Philex Mining Corporation (G.R. No. 147756, 09 August 2005)].
So Sir Richard DeDios gave me this calculation of the severance 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”
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!
Now, separation pay naman becomes a full month per year of service if pinalitan ka ng machine, or they cut your position, or they can’t reinstate you to your previous position and it’s not the fault of you employer. Once again, here’s the table from NLRC:
Under the Tax Code of the Philippines, separation fees and benefits in the Philippines are exempted from income tax, and consequently, withholding taxes on compensation for separations from employment because of death, sickness or other physical disability or any other causes beyond employee’s control.
6. Can an Employee Asked to Be Separated for Authorized Causes Just Because He Got Sick of COVID-19?
Nope, not because of COVID-19 or by being pregnant.
Sorry, but for a company to separate an employee for Authorized Causes, they must first prove that they are suffering from a disease that is NOT curable within a period of 6 months. This means that a regular cold is INSUFFICIENT. The law contemplates particular types of diseases. Among these are diseases where continued work would further compromise the employee’s health, and/or is prejudicial to his health as well as those of his co-workers.
The law also covers diseases that are contagious and which would be detrimental to the health of the employee’s co-workers. But the employer’s characterization of the disease cannot be arbitrary nor without expert basis.
The documents strictly required are as follows:
A. Certification from a Public Physician or Public Medical Hospital that the illness of the employee CANNOT be cured within a 6-month period.
IMPORTANT: No, a medical certificate is NOT sufficient. The law is strict on the type of certification is needed for an employee to be dismissed for authorized causes due to incurable disease.
B. The Company and Employee Must undergo the proper Authorized Cause of Termination. Twin Notice Rule and proper due process is still required before you can terminate an employee due to an uncurable disease within 6 months.
- REMINDER: Due process means a written notice of dismissal to the employee specifying the grounds at least 30 days before the date of termination. A copy of the notice shall also be furnished the Regional Office of the Department of Labor and Employment (DOLE) where the employer is located.
- In 2014, it ruled in Deoferio vs. Intel [G.R. No. 202996], that:In Sy v. Court of Appeals and Manly Express, Inc. v. Payong, Jr., promulgated in 2003 and 2005, respectively, the Court finally pronounced the rule that the employer must furnish the employee TWO written notices in terminations due to disease, namely: (1) the notice to apprise the employee of the ground for which his dismissal is sought; and (2) the notice informing the employee of his dismissal, to be issued after the employee has been given reasonable opportunity to answer and to be heard on his defense.
C. The Company must have proof that separation pay was paid, based on 1/2 month pay per year of service, or a minimum of one month, whichever was higher.
If the disease can be cured within 6 months, the employer can ask the employee to take an unpaid leave of absence. When the employee returns to good health, he should be reinstated to his former position without diminishment of salary, benefits or rank.
Now, an employee may complain he is illegally dismissed if he was retrenched as a result of the incurable disease. However, here are some jurisprudences shared with us by Lawyers of the Philippines to show that even if staff complains, many do not win so long as the company follows due process:
- Several heart attacks experienced by employee were valid to dismissing him for Authorized Causes: Baby Bus, Inc. vs. Minister of Labor [G.R. L-54223, February 26, 1988]. The Supreme Court here ruled that the several heart attacks experienced by an employee were clear indications that working would further compromise his health. The employee’s claim of illegal dismissal was dismissed.
- Schizophrenia after a doctor certified that the disease could not be cured in 6 months: In Deoferio vs. Intel, [G.R. No. 202996, June 18, 2014], the Supreme Court upheld the dismissal.
- Advanced tuberculosis certified by a competent public health official is a ground for termination
Hence, companies must still take proper care to ensure due process is followed even if the employee is forcing the company to terminate him/her for an incurable sickness. In Fuji vs. Espiritu [G.R. No. 204944-45, December 3, 2014], decided later that same year, the Supreme Court briefly discussed what this due process entails:
For dismissal under Article 284 to be valid, two requirements must be complied with: (1) the employee’s disease cannot be cured within six (6) months and his “continued employment is prohibited by law or prejudicial to his health as well as to the health of his co-employees”; and (2) certification issued by a competent public health authority that even with proper medical treatment, the disease cannot be cured within six (6) months. The burden of proving compliance with these requisites is on the employer. Noncompliance leads to the conclusion that the dismissal was illegal.
There is no evidence showing that Arlene was accorded due process. After informing her employer of her lung cancer, she was not given the chance to present medical certificates. Fuji immediately concluded that Arlene could no longer perform her duties because of chemotherapy. It did not ask her how her condition would affect her work. Neither did it suggest for her to take a leave, even though she was entitled to sick leaves. Worse, it did not present any certificate from a competent public health authority. What Fuji did was to inform her that her contract would no longer be renewed, and when she did not agree, her salary was withheld. Thus, the Court of Appeals correctly upheld the finding of the National Labor Relations Commission that for the failure of Fuji to comply with due process, Arlene was illegally dismissed.
Thus due process requires not only that the disease’s incurability within 6 months must be established, and this supported by certification of a competent public health authority, but also that the employee should be informed and given the opportunity to respond to the findings.
7. Got Terminated — How Do I Avail of the SSS Involuntary Unemployment Benefits?
Wait a minute, not everyone can avail of the SSS Involuntary Unemployment Benefits so please read carefully below. I have written about the SSS Involuntary Unemployment Benefits extensively last year. But as a recap, here’s the link and reminder: HR Talk: 10 Questions Answered Re: SSS Involuntary Separation Benefit Worth Up to Php 20,000 Max.
Who is Qualified for the Unemployment Benefit?
a. The applicant should be a member of SSS. If you’re not even part of SSS, you are NOT qualified. If you are a voluntary contributer, you are NOT qualified.
b. Member-applicant must have paid at least 36 monthly contributions.
IMPORTANT: 12 months of the 36 months should have been paid within the 18-month period prior to the month of involuntary separation.
c. There is an Age Requirement:
a. For everyone else, you must be 60 years old or below at the time of separation.
b. For racehorse jockeys, aged 55 years old and below.
c. For Underground and surface mine workers, age should be 50 years old and below.
d. You can only claim it once every three years from the date of involuntary separation.
e. You did NOT resign voluntarily. That’s why it’s called Involuntary Unemployed. Once you quit, you are NOT eligible for the program.
f. You must have been fired due to the following AUTHORIZED causes:
g. You did not get laid off due to Just Causes. If so, you are NOT QUALIFIED for the Involuntary Separation Insurance Pay:
To determine how to compute your SSS Involuntary Unemployment Benefit if you are qualified, you must check out the SSS Contribution Chart. The amount you get is based on the amount you contributed,
The cash grant is worth 50% of the member’s average monthly salary credit (MSC) for two months. See attached for how much you will get:
Example, if you earn Php 14,000.00 or the minimum wage — meaning, your company has deposited Php 1,690.00 total per month — the Monthly Salary Credit is Php 14,000. The cash grant is worth 50% of the member’s average monthly salary credit (MSC), so following the table, you will get Php 7,000 per month. The program will last for only two months.
NOTE: If two or more compensable contingencies occurred within the same period, SSS will only pay the highest benefit from the recorded contingencies. They are given one year from the time of their separation to file for their benefit claim.
8. What to Do Post Termination? Should I complain about my Termination?
My suggestion to you if you were terminated is for you to reflect on the real nature of your termination, and to see whether you were properly or wrongfully terminated or not. Yes, every person has the right to complain about their employment IF there is abuse. But before you complain, always ensure that YOU ARE IN THE RIGHT and there’s clear abuse that happened to make the complaint worthwhile.
A lot of people will sulsol you and say you should complain because your rights had been trampled on by your employer. What’s important to note though is that these people will only whisper things to your ear. Pero they won’t be the one to walk and fall in line at DOLE/NLRC/Tulfo, or pay for the lawyer you will have to hire (if you cannot avail of free PAO services since you are not indigent) if in case you decide to pursue your labor complaint.
They are not the breadwinners of your family. Salita sila ng salita, pero in the future, they are not the ones who would need to find a job later on, and then be dismayed to see that so many employers will refuse to hire a staff who was LEGALLY DISMISSED, but complained to DOLE about an illegally dismissal. Fact of the matter is, once you complain to DOLE/NLRC/Tulfo, you start following due process. Your final pay will be held, and you will be asked to duke it out in mediation or via submission of position papers (which is usually not free) before you settle your bridges with the company.
For me, only complain if:
- You are 99.9% sure that your rights have been abused: Please double check with the Philippine HR Group or with a labor lawyer to ensure that you have a winnable case.
- The damages/backwages you will win is more than enough to justify the time/effort/money you will spend in pursuing a labor case: If you’re just a probationary employee with 3 weeks of work, sobrang liit ang makukuha mo for the trouble. It is a different issue though if you’ve been working in a company for 10 years and you were illegally dismissed. Masmalaki ang makukuha mo if ever you win.
- You are 1000% sure you want to burn your bridges and you will never need the help of your ex company: Once you complain against them, all communication will be blocked and pahirapan for you to ask them for factors.
- You actually have the time/effort/money to pursue a complaint. Hindi libre ang to follow due process. If you file a complaint in NLRC, you have to attend the hearings, and if needed be, hire a lawyer to make your position paper. Unless it’s PAO, lawyers charge a minimum of Php 5,000 per work/hearing so just make sure you are ready to spend.
Photo Source: En Banc Resolution No. 03-02, NLRC
- You are sure your employer has capacity and integrity to pay: My sister-in-law complained against an ex-employer and won 4 months of pay. The case has been ongoing for 3 years, and even if she won, she found it very difficult to collect. The ex employer changed name, changed office addresses, and could not be found. Hence, even if she won the case, she had to go back and forth to collect, and 3 years later, hindi pa nabayaran yung pinanalo niya.
- You are ok to have future employers know that you have complained to DOLE: Fact of the matter is, future employers will know that you have once complained to DOLE. We can sniff these things out. Make sure that you are okay with that, and you can confidently justify your decision to complain later on. Kasi once you’ve complained, there’s no turning back. And yes, some employers will not employ you once they know you’ve filed a DOLE complaint. Such is life.
LAST WORDS: Be Positive
My suggestion is for you to do a little bit more reflection in your life. Please do not use your emotions too much when you get dumped by the company.
While termination might seem like a betrayal and your pride might feel a little hurt, sometimes din, it’s not easy to get stuck in a toxic relationship. Think of your previous company like an ex-girlfriend or ex-boyfriend. Kahit na naghiwalay kayo, mayroon naman kayong happy memories together, and kahit na masakit, nakinabang naman kayo sa isa’t isa.
So instead of acting bitter and showing yourself as a psycho ex, leave the company with grace and a smile. Understand that minsan, wala naman talagang forever, and HOW YOU REACT to a termination is as important as how you were working there as an employee. If you conduct yourself with grace and kindness, future employers will notice.
Alam naman natin na may lockdown and recession and mahirap maghanap ng bagong work, pero life is about ups and downs. The most important thing is that we do not turn psycho, suicidal and depressed. Instead, spend the lockdown to celebrate some quality time with family, nurse your pride and ego, and then spend the rest of the weeks to find a new job. Kahit na mahirap, always stay positive, and I am sure future employers will take notice.
While I have never hired anyone who is bitter against an ex-company or ex-boyfriend, I have always loved to talk to applicants who are positive and have many takeaways kahit na mahirao ang buhay. Be the employee everyone wants to hire. Anyway, if you are good, hindi ka naman mawawalan ng trabaho ng matagal. Huwag ka lang maging psycho ex, ksai bad yan.
Have a great week ahead!
16 thoughts on “HR Talk: Can You Terminate Staff During the Pandemic (And Not Pay Separation Pay)?”
Hi Ms. Tina,
I have been following your posts and been reading your blogs recently. Thanks for your inputs, they have been really helpful.
This post is very timely with my current concern. I hope you can provide enlightenment.
We have decided to let go of an employee due to theft/ serious misconduct.
The employee was caught stealing an item owned by the company (CCTV footages were present as evidence).
The day after, we were supposed to place him under preventive suspension but the employee didn’t show up for work.
The following day after the absence, the employee reported to work and we issued (1) preventive suspension notice and (2) a notice to explain. He gave his explanation the same day, admitting to the allegation of theft and promised to return what he stole.
The management discussed the situation the next day and decided to dismiss the employee to avoid recurrence and to protect the company and other employees as well.
Last Monday, we sent the following to the employee’s last know address:
1. Notice of Termination
2. Clearance Form
3. Final Pay Calculation – back pay, pro-rated 13th month, contributions deducted but are not yet remitted (for March)
5. Cover Letter – stating that we are sending the above documents and that he may contact us should there be any questions.
Now the employee is arguing that this is unjust and is an illegal termination, threatening the company admin that he will file for illegal termination to DOLE.
The company would like to keep our decision and dismiss this employee. Since the employee is not cooperating and doesn’t want to sign the notice of termination, can we ask the company admin to sign as a witness? Should we remit the last pay even if he is not cooperating? Although I’m a bit skeptical in remitting his last pay since most probably he will not sign the quit claim.
Would appreciate your response.
Thanks a lot!
Give 5 says breathing room before the Notice of Termination.
Don’t release the final pay yet. You have 30 days to release. You can ask him to pick up and sign quitclaim in exchange. If he goes to DOLE before then, then only release the final pay in DOLE in front of an arbiter with a quitclaim. Never release money if there’s no quitclaim or voluntary consent. Just wait for his complaint. Pay face to face in DOLE.
Yes, you can ask witness to sign termination.
Thanks a lot, Ms. Tina!
Hi Ms Tina, can an HIV+ employee be terminated under authorized cause #5?
No. HIV is a treatable disease and should not stop any staff from working.
Thank you for your reply.
Liked👍Very Informative. Thank you
Thank you for leaving a comment!
Hi Ms. Tina:
May I ask If the show cause letter has been served and the employee failed to reply after 5 days, do we need to conduct administrative hearing? The charges is gross misconudct.
Thank you in adance.
Yes, invite to admin hearing. Reread my post on how to do it. Only after the admin hearing can you terminate.
Thanks a lot.
Hi mam Tina thank you saung blog post npka helpful po. Ask po sna ako I’m a business owner inside the mall at naapektuhan po kmi NG pandemic at ang last choice ko is mgbawas NG tauhan meron akong 4 employees. At tinanggl ko ang mga mdlas ko verbal mwarningan since wala po kming handbook at rules and regulations at new lng dn Po ko sa business d ko lm ang mga law n dpat pg NG terminate ka kylngn nila mkakuha NG separation pay I’m willing nmn po mgbgay NG separation pay kya lng mdmi ksing hinihingi ang isang employee n tinanggal ko at sinbi n ippadole daw ako. Ang sbi sakin sa dole ma’s OK n dun po kmi mgusap kya hnhnty ko n iptwag nila. Pero ang isa n pinaalis ko hndi nmn mgppadole at willing ako ibgy ang separation pay nya nkita ko po sa group n nid NG quit claim n tintwag pra wala NG liabilities ang employer s knya at wala po ko idea for a quit claim pwede po b n simple ksultan lng na ntanggap nya n po ang separation pay nya.? At yung sa mgppadole po b sakin okie lng b n hintyin ko n lng po yun pra dun kmi mkpagusap? Meron po b n mga company handbook n pwede ko mgamit pra sa policies and rules pra sa mga mliliit Na business? Maraming salamat po sa response mam. Godbless u po.
All companies – big or small – follow the same labor law.
Yes you can talk to the staff na mag DODOLE sa DOLE.
Consult with a lawyer regarding drafting of quitclaim. Can also google and revise as per need. Release final pay to the friendlier employee once he signs the quitclaim.
Thanks for the helpful post. Just a quick question. I am closing my business due to financial losses so I’m filing for bankruptcy and following all due processes. All I see online is to pay separation pay if NOT due to financial losses. So does this mean I am not obliged to pay separation pay? Since I also don’t know where I am going to get the money for paying.
Closure is 1/2 month pay per year of service, minimum of 1 month. Hence, if someone is with you for 9 months, they still get 1 month pay. Hope this helps!