Tina in Manila

First of all, I’m sorry that you got terminated during ECQ. Losing one’s job is no joke. I know you are angry, and you want to hit back. But before you complain, let’s find out first if what your employer did to you is constitutional or not.

Mahirap din kasi to complain and then finding out that they actually followed due process and there was a valid reason to terminate you. So before you complain, here are

12 COMMON QUESTIONS ANSWERED ABOUT TERMINATION IN THE TIME OF COVID-19

1. “Is it legal to terminate during ECQ just because I didn’t report?”

Labor Advisory No. 01, Series of 2020 issued last January 13 answers this question.

Under Section 3, there should be No Liability in case of Failure or Refusal to Work — “Employees who fail or refuse to work by reason of imminent danger resulting from natural or man-made calamity shall not be exposed to or subject to any administrative sanction.”

Employees CANNOT be fired just because they failed to go to work due to fears of COVID-19. The company cannot penalize or fire them just because they didn’t report to work.

However, the company has the right NOT to pay them for days unworked, based on the same Labor Advisory, Sec. 2:

2. “If there’s no termination, why did I get fired during ECQ? Is it illegal for the company to fire me during ECQ?”

People misread the Labor Advisory by saying that they are protected from being fired during ECQ. So they can be an ass, do whatever they want, and still be protected by DOLE.

This is a very WRONG misconception — A company CAN and SHOULD terminate your employment for any Just and Authorized Causes as prescribed by the Labor Code so long as there’s really an offense and the company follows due process in firing you. Here are the difference between Just and Authorized Causes:

In Tagalog:

You need to know WHY you were terminated. Both Just and Authorized Causes are allowed during ECQ under the following conditions:

• Just Causes: There must be a valid offense, Twin notice rule and proper due process are followed.
• Authorized Causes: Company has reported to DOLE that they will cut people, 30 days notice, and payment of severance pay.  Severance pay as follows:

If you are terminated using the Just and Authorized Causes, wala kang laban sa DOLE.

3. Can Probationary Employees Be Terminated During ECQ?

If the probationary employee was terminated for Just and Authorized causes, follow Question #2.

If the probationary employee was terminated for failing the standards set by the company for regularization at the start of her probationary employment, please read on. To answer the question, YES, you CAN BE terminated if you failed to qualify for reasonable standards made known to you at the time of engagement.

The IRR of the Labor Code states:

From the Department of Labor itself:

1. If you are entering a probationary employment, your employer must clearly communicate to you the reasonable standards expected from you during your probationary period. You know you are under probation.
2. Since you are under probationary employment, you the employee knows from the very start that you will be under close observation and your performance of your assigned duties and functions would be under continuous scrutiny by your superiors.

1. Your employer will appraise your performance to the standards they have communicated to you at the start of the employment.
2. You can dismiss a probationary employee without notice or hearing because this is a trial period; If the work of your probationary employee is found to be unsatisfactory, you’ll need to serve him a written notice.
3. The two notice rule does NOT apply if a probationary employee is dismissed for poor work quality. If it’s under Just Causes, the twin notice rules should be followed.
4. Under Article 281 of the Labor Code of the Philippines, probationary employment shall NOT exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. An employee who is allowed to work after a probationary period shall be considered a regular employee. I use this helpful date calculator to count 180 days.

As enunciated by the Supreme Court in the case of Carvajal vs. Luzon Development Bank and/or Ramirez (GR No. 186169, August 1, 2012, Ponente: Associate Justice Jose Portugal Perez)

“x x x Unlike under the first ground for the valid termination of probationary employment which is for just cause, the second ground failure to qualify in accordance with the standards prescribed by employer does not require notice and hearing. Due process of law for this second ground consists of making the reasonable standards expected of the employee during his probationary period known to him at the time of his probationary employment.

I have always tried to file a complete documentation by giving the probationary employee a written evaluation so that it’s documented that the company reminded her of the standards she needed to pass and she is failing it. The written evaluation is a call for improvement. This is filed to her 201.

As an HR, we always document offenses and job performance failures so that when they go to NLRC, you have a lot of documentation on why the probationary employee failed the standards for regularization. This is most prudent.

However, the law is clear — the Employer do not need a notice or hearing to terminate a probationary employee who has failed due to poor work quality. 

In a 2015 ruling, Enchanted Kingdom Inc vs. Verzo, GR No. 209559, December 9, 2015, the probationary employee was terminated on the 180th day. Emphasizing that notice and hearing are not required in case a probationary is not retained for failure to comply with the reasonable standards set by his employer, the Supreme Court outright said:

” Whether or not Verzo was afforded the opportunity to explain his side is of no consequence.”

This later case allowed termination of a probationary at the very last day of his probation period. 

Followup Question# 1: Do we still need to prepare a written warning, memo, or notice to explain regarding the probationary employee’s poor performance before delivering to him the notice of early termination of his/her probationary contract with the company? Is it required?

Lesson Learned: If you’re given a chance to be a probationary employee, WORK HARD and PROVE YOUR WORTH. Come early, be focused, do the work and be someone the team wants to have. Because once you received the notice of poor performance, that’s it. You had 6 months to prove your work, but didn’t.

Followup Question #3: What about the Labor Advisory No. 14, Series of 2020 re: the Non-Inclusion of the ECQ on the 6 month Probationary Period?

As explained in Labor Advisory No. 14, Series of 2020:

This means, the ECQ period is NOT counted in the probationary period of 6 months if you have temporarily stopped working. So if you started in January 2 2020 and you were supposed to be regularized 180 days later, the ECQ period from March 17 to May 16 (2 months) for example is NOT counted IF you are at home resting. It’s a different story if you’re WFH or still coming to work during ECQ.

If you are working during ECQ, ignore this memo. Counted ang lahat ng pinasok mo.

But the non-inclusion of the ECQ to the probationary period is irrelevant in this case.

4. How much do I get for Separation Pay?

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 174 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.

Separation pay may NOT be as big as you think.

So Sir Richard DeDios gave 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”

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! ❤️

Full month per year of service naman 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.

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:

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)].

5. Do you get separation pay if you voluntarily resigned?

Unless your boss is super nice, you get ZERO separation pay if the resignation was voluntary. Even if you worked for 25 years, if you resign, your employer is NOT obliged to give you any separation pay UNLESS there was a prior agreement that they would give you one.

“Thus, the elementary rule is that an employee who voluntarily resigns from employment is not entitled to separation pay, except when it is stipulated in the employment contract or Collective Bargaining Agreement or based on established employer practice in the company.”

You cannot also avail of the Small Business Wage Subsidy (SBWS) if you resigned. They are NOT eligible and if they get SBWS, they cannot resign during the ECQ period. See points:

6. I resigned at the heat of the moment. Pero when I found out that there’s SBWS, gusto kong bawiin ang resignation ko. Pero ayaw nila! Illegal termination yon diba?

Once you voluntarily resign — complete with WRITTEN resignation letter — it’s company discretion to accept it or not. There is a 30-day notice period for turnover. However, if the company decides to forgo the notice period, they can accept your resignation and have you end your employment before the expiration of the 30 day notice.

Here’s more info about Resignations, but it a nutshell:

“It was explained by the Supreme Court in Hechanova vs. Matorre (G.R. No. 198261, 16 October 2013) that the 30-day notice requirement for an employee’s resignation is for the benefit of the employer in order to afford the him enough time to hire another employee if needed and to see to it that there is proper turn-over of the tasks which the resigning employee may be handling.

Since the 30-day notice is for the employer’s benefit, he may waive such period. Thus, in Paredes vs. Feed the Children Philippines, Inc. (G.R. No. 184397, 9 September 2015), the Supreme Court elucidated that the rule requiring an employee to stay or complete the 30-day period prior to the effectivity of his resignation becomes discretionary on the part of management as an employee who intends to resign may be allowed a shorter period before his resignation becomes effective. Hence, as part of management prerogative, an employer has the right to move the effectivity date to an earlier date.

Take heed that if an employee does not give the 30-day notice, he can be held liable for damages to the employer. An aggrieved employer may file a civil case for damages and breach of contractual obligation with the regular courts.”

A resignation letter — once accepted — is valid and final. An employee cannot blame the employer for accepting his/her resignation letter that was willingly given just because it was made “on the heat of the moment.”

If the employer accepts it, walang bawian na yan. May this be a lesson to you NOT to resign when you’re mad. Just remember:

7. “My company fired me. I have been working there for 7 years. They told me to report back to my agency. My agency said I have to await my assignment. Did I not get terminated? I want my separation pay!”

The agency is your employer, not the company. The company is just a client and they can replace you at any time.

If you get re-assigned from the company and returned back to the agency, your agency has the right to keep you on floating status for 6 months as they find you another assignment. If they cannot find you another assignment within 6 months, they have to pay your separation pay.

And yes, this is legal. You are a regular employee of the agency, not the Principal.

8. They just gave me a letter saying I was fired due to Redundancy. I’ve been working there for X Years. Is this Legal?

Photo Credit to Shutterstock

In such cases, the Supreme Court held that the employer has no legal obligation to keep in its payroll more employees than are necessary for the operation of its business. (Wiltshire File Co., Inc. v. NLRC, 193 SCRA 672).

Let me repeat — YES, so long as they follow the proper processes of terminating you, which are: 

1. A written notice served on the employees
2. A written notice to the Department of Labor and Employment at least thirty (30) days prior to the intended date of redundancy. Specifically, the purpose of such previous notice to DOLE must be to enable it to ascertain the verity of the cause for termination of employment. Form is here.
3. Payment of Separation Pay along with the final pay

It must be stressed, however, that if the employee consented to or voluntarily applied for retrenchment with the employer due to redundancy, the required previous notice to the DOLE is not necessary as the employee thereby acknowledged the existence of a valid cause for termination of his employment.

9. They told me that I’m on Floating Status. No work, no pay daw. Is this legal?

Unfortunately YES for the below conditions:

Under Article 286 of the Labor Code it is provided as follows:

ART. 286. When employment not deemed terminated. — The bonafide suspension of the operation of a business or undertaking for a period not exceeding six months, or the fulfillment by the employee of a military or civic duty shall not terminate employment.

In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations of his employer or from his relief from the military or civic duty. If there’s no work to be returned after max of 6 months floating status, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.

SHOULD YOU GET PAID WHILE ON FLOATING STATUS?

Sad truth is the company has no obligation to pay you basic salary under the rule no work, no pay. Although there are companies who give basic pay to their employees who are on floating status, they are rare. If you’re in one, stay there. I had a friend who was earning while he was sitting at home waiting to be called and report back to work as soon as there’s an opening. Because he was placed on floating status.

WHAT HAPPENS WHEN 6 MONTHS HAVE LAPSED?

Your employer will pay you separation and everything due to you. Unless of course they’re able to find a new campaign for you. Provided that the campaign will accept you and that you’re a fit for the opening.

WARNING: Floating Status is TRICKY. Three months floating is a sure ball. No problems with labor.

You do need to have the right reason to put a staff on floating status if you plan to do so for more than 3 months. Read the fine print to proceed:

Travel agency closed due to government orders regarding ECQ and GCQ — Legal for 6 months max.

Lack of contract awarded to the business for that team to do their work — Legal for 6 months max.

Mall closed due to fire — Legal to float for 6 months max.

I’m angry at you and company wants you to force resign so they place you on floating status for over 3 months — ILLEGAL.

This article by Charles Anderson, Suspension of Business Operations: Floating Status, Temporary Lay-off gives a well balanced view on the subject and is a gold mine of information. Please READ this article before floating a staff. Long but super interesting to read.

10. How much do I get when I’m Fired?

If you resigned or was terminated for Just Causes: Final Pay = Unpaid Wages + Pro-Rata 13th Month Pay

If you were terminated for Authorized Causes: Final Pay + Separation or Severance Pay.

The money will be paid to you after clearance and release of final pay, which is 30 days from your last working day.

For me, if you get what is due you, leave gracefully and quietly. Basta, the company paid you what they are obliged to give you as per labor law.

And yes, you can ask for your Certificate of Employee (COE) to help you in your job hunting.

11. I was put on Flexible Work Agreement (FWA) after ECQ. Instead of 6 work days, my days had been reduced. Pwede ba yon?

Yes according to Department Advisory No. 2, Series of 2009.

To adopt FWA, company just have to provide notice to DOLE:

This is the form you need to submit to DOLE — This arrangement can only be implemented maximum 6 months:

12. “I want to complain to DOLE about my company for Illegal Termination! #raffytulfoinaction

Before you complain, find out first if your employer did anything wrong. Galit ka ng galit, pero hindi naman illegal yung ginawa sa iyo. Sayang lang ang oras ng pagpunta mo sa DOLE.

Actually, I think this will be the line in DOLE pag lift ng ECQ — pila pila na lang kay DOLE ha.

“I am the breadwinner and I have my family to feed. Obligado ng company na papapasukin ako! Kawawa naman kami!”

Your employer is not a charity. The Employer just needs to properly employ you, pay you proper wages, and treat you right. If there’s a valid reason for them to terminate you, they can. How many families you have to feed is not really the concern of the company.

You cannot DOLE a company just because your family will starve. You can only DOLE them if there’s a clear abuse to your employment.

Look, it does not mean that if you complain, you are in the right. Sometimes, you are in the wrong too. A very wise HR Guru, Jun Mendoza wrote about the “Stimulus-Respose Theory” in response to this termination letter:

This is all Sir Jun Mendoza’s words, not mine:

“We watch a Korean drama series (stimulus), we cry (response). We quarantine ourselves at home for over a month and suddenly we see violators outside our homes not wearing masks (stimulus), we get frustrated (response). We read a post of someone who shares she was seemingly aggrieved by her employer (stimulus), we get angry (response). Make no mistake–it is a natural HUMAN reaction.

But why do we have varied responses? Let’s go through some of them (and now, I intersperse the legalities). As in always, you will find the trigger-happy comments like “Bawal ma-terminate sa ECQ!” or “Ipa-DOLE mo na yan!”. Mind you, these comments create a second level of stimulus that complements the original post, which in itself is already emotionally-packed.

So who said it is legally prohibited to dismiss employees during the Covid crisis? Did you hear this on TV? From your co-worker? From those posts on FB, where you can hardly tell the difference between authentic and fake news? Well, the only clear reference is, and will always be, the law.

Oh, but one said termination of employment is now prohibited per Republic Act No. 11469, otherwise known as the “Bayanihan to Heal as One Act“. Baloney! I went through all 14 pages of the law from Section 1 to Section 9, and there is NOTHING even close to that statement. In fact, subsequent Labor Advisories (e.g. Flexible Work Arrangement) suggested alternatives to termination,. The term “suggested” (and not “mandated”) clearly states that an employer has the legal right to terminate employment even during this Covid Crisis.

So Tatagalugin ko para mas maliwanag: Hindi po bawal ang mag-terminate ng employment kahit ngayon na ECQ basta susundin ng Management lahat ng alituntunin na nakasaad sa Art. 298 (Termination of Employment Due to Authorized Cause) ng Labor Code.

And now we have comments that strongly suggested to file a labor complaint at DOLE/NLRC. Oh, that is your constitutional right! And if all facts given by the original post are complete and accurate, you will probably win.

But based on my experience, in all probability, this is what you might hear from the arbiter/mediator: “Ang kasalanan lang naman ng employer ninyo ay hindi sinunod ang due process na 30 days. Kung bayaran nila yung sweldo ninyo para sa period na May 16-30, kasama yung legally mandated na separation pay, okay na ba sa inyo yun?” They will do everything to prevent the case from escalating, and that is for the benefit of all parties–the employee, the employer and DOLE/NLRC. Sure they may penalize the employer for violating the 30-day notice, but you’re out of that discussion. That will be between DOLE and the employer.

And now for the “psychological phenomenon” finale. Why were there so many adverse and negative reactions that were generated from the post? Well, for one, any termination issue is sensitive. We don’t want to lose our jobs ourselves, especially in the midst of the Covid crisis. So our reaction to the stimulus is empathy. When an employer that has a history of not remitting government contributions gets rid of half of it employees without giving due notice by sending a curt and/or vague letter of termination that has no explicit statement that it would give our separation pay and yet demanding the employee returns any company asset in his possession (not to mention that our favorite HR Department was bypassed), it surely looks like a prime candidate for “The Employer from Hell Award“.

In reality, it did nothing illegal in the letter, save for the 30-day notice violation. The letter is silent in terms of the separation pay. So we don’t really know if it will pay or not pay. If eventually it does not, then and only then did the company do something illegal. For all we know, once the employee clears himself with Accounting, they might get their checks immediately. WE DON’T KNOW.

Some said the letter did not state the reason for the termination. Hello? Isn’t that what the first paragraph says? Okay, fine, you’re probably looking for the words “authorized cause” or “retrenchment”. But the absence of those words doesn’t constitute an illegal act. Sure, it probably gives doubts that the employer may have ill intentions (or is an amateur in these types of things), but it is NOT illegal. As long as the employer pays you half month for every year of service if you are retrenched, they complied with the law.

Let them justify retrenchment by submitting the company’s financial statements to DOLE. But as of now, we are not even sure if the company will provide separation pay. And yet, most were quick to react. Why? Stimulus-Response! We were presented a stimulus that made our brains perceive an aggrieved employee who lost her job, initiated by an unjust employer. And our response was mostly dictated by the right portion of our brain, the one that controls the levers of anxiety, fear, despair, anger and hatred.”

My response to the same stimulus is: A sincere hope that this employee and her colleagues will be given their separation pay and be compensated for the balance of the 30-day notice. Only time (as in the next few days leading to May 16) will tell.

My advice is for you to go to your employer directly and clarify things peacefully. That is your right and there is nothing wrong in asking what is due you. Draft an official letter (if you are not unionized) representing the group of employees who lost their jobs. In that way, you have something in writing that clearly states what you want. That should be the first step, even before speculating that you won’t get any separation pay and certainly before you file a labor complaint.”

But nobody can stop me from going to DOLE. I’m still angry. I still want to complain!

Go ahead.

Line up.

Join the circus and exercise your constitutional right to complain.

Eto lang sa akin ha.

After COVID-19, the job market will be extra tough. Many companies are freeze hiring and people are getting laid off. If you think you’re the only one being laid off, that’s not true. So many companies are firing people left and right.  Unemployment WILL increase. It’s just a matter of how bad.

According to the Philippine Daily Inquirer, unemployment will rise up 8% this second quarter. That’s bad.

If you still have a job, treasure it. If you don’t have a job anymore, MAKE SURE YOU GET PAID PROPERLY, and then use your effort to find a new job. Do not waste a lot of time getting mad at an employer who do not want you. Find a new job ASAP so that your family can eat.

If you want to fall in line in DOLE, do so. it’s not easy to complain about an employer But note that may proseso yan. You have to attend several mediation meetings and talk face to face with your employer. Payment is not immediate. And besides, why complain if you are going to get paid what’s properly due you? Pareho lang ang bayad. Hindi naman dadagdag because you complained.

Two, if future employers find out that you are the mareklamo type and you filed a case against your employer in DOLE, they will shy from hiring you anymore. Gone are the days na magrereklamo ka and then you can still find a job. It’s post COVID-19 season now. Everyone’s job is on thin ice. Coupled with the fact that you complained to DOLE, it will be slightly harder for you to find a job.

Job hunt instead. This is better than staying angry in the past if anyway, you are being paid your severance. Once you find a new job, you will feel better. And chances are, you will find a new employer who will treat you better than your old one.

Thanks for Reading!

Hope this helps in a nutshell. If there’s any error, please PM me so I can update the post accordingly with the correct information.

If you have been terminated during this sensitive period, I’m sorry. And I wish you all the best in looking for new work. Have a great week ahead!