Author - Atty Elvin

Constructive Dismissal does not Always Involve Diminution in Rank, Compensation, Benefit and privileges

Constructive dismissal exists where there is cessation of work, because ‘continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in pay’ and other benefits. Aptly called a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not, constructive dismissal may, likewise, exist if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of [...]

Tasks of a Probationary Similar to that of a Consultant may Negate Valid Probationary Status

Probationary employment is allowed under the Labor Code, as amended. Thus, under Art. 296, 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. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by [...]

Lack of First Written Notice in Employee Dismissal is Non Compliance with Procedural Due Process

Procedural due process is required in employee dismissal. Failure to comply shall result in the imposition of indemnity in the form of nominal damages. Due process under the Labor Code involves two aspects: first, substantive––the valid and authorized causes of termination of employment under the Labor Code; and second, procedural––the manner of dismissal. In the present case, the CA affirmed the findings of the labor arbiter and the NLRC that the termination of employment of respondent was based on [...]

Retirement Pay Under the Labor Code Sample Computation

Retirement has been defined as a withdrawal from office, public station, business, occupation, or public duty. [Brion vs. South Philippine Union Mission Of The Seventh Day Adventist Church, G.R. No. 135136 May 19, 1999] It is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter, after reaching a certain age, agrees and/or consents to sever his employment with the former. [Soberano vs. Secretary of Labor, 99 SCRA [...]

Employer Employee Relationship Issue in a Labor Dispute

While the Labor Arbiter (LA) has no jurisdiction over dispute that does not arise from employer-employee relationship, the determination of whether such relationship exists lies with the LA also. In the case of Atok Big Wedge Company, Inc. vs. Gison (G.R. No. 169510, August 8, 2011), the Supreme Court (SC) held that well-entrenched is the doctrine that the existence of an employer-employee relationship is ultimately a question of fact and that the findings thereon by the Labor Arbiter and [...]

Nature of Bonus as a Management Prerogative and Concept of Past Generosity Against Background of Losses

During Christmas season one of the benefits enjoyed is the Christmas Bonus. Is this a demandable and enforceable benefit? The Supreme Court (SC) said that a bonus is an amount granted and paid to an employee for his industry and loyalty which contributed to the success of the employer’s business and made possible the realization of profits. [Producers Bank of the Philippines vs. NLRC, G.R. No. 100701, March 28, 2001] It is an act of generosity granted by an enlightened [...]

Illegal Wage Deductions from Employee’s Salary Should be Reimbursed by Employer

There are employers who deduct from the wages of their employees. Some of these are illegal. In one case, the employer deduct from the wage constituting penalties for deliveries outside of the delivery hours, cell phone plans, bad orders and liquidation shortage. [Marby Food Ventures Corporation vs. Dela Cruz, G.R. No. 244629, July 28, 2020] It is clearly stated in Article 113 of the Labor Code that no employer, in his own behalf or in behalf of any person, shall [...]

Sample 13th Month Pay Computation using NCR Minimum Wage for Year 2022

Sample computation of the 13th month pay mandatory benefit is shown here to guide both the employer and employee especially that the date of payment under the law is getting closer. Under P.D. 851, all employers are required to pay all their employees receiving a basic salary a 13th-month pay not later than December 24 of every year. Memorandum No. 28 modified Section 1 of P.D. 851 to the extent that all employees are hereby required to pay all [...]

13th Month Pay Labor Advisory PDF for the Year 2022

13th month pay shall mean one twelfth (1/12) of the basic salary of an employee within a calendar year. (See Guide on Employee Compensation and Benefits Vol. 2, 2nd Edition, by Atty. Elvin B. Villanueva citing Section 2, Rules and Regulations Implementing Presidential Decree No. 851). This shall apply only to rank-and-file employees. A rank-and-file employee must have worked for at least one (1) month to enjoy the 13th-month pay benefit. As clearly stated by law, except as provided [...]

Notice Requirement and Compelling Economic Reason in Bona Fide Suspension of Operations

The suspension of employment under Article 301 of the Labor Code is only temporary and should not exceed six months, as the Supreme Court (SC) explained in PT&T Corp. vs. National Labor Relations Commission, it may be applied but only by analogy to set a specific period that employees may remain temporarily laid-off or in floating status. Six months is the period set by law that the operation of a business or undertaking may be suspended thereby suspending the [...]

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