Reinstatement Pending Appeal with Sample Demand for Reinstatement Salaries and Benefits
Reinstatement, if ordered in a labor case by the Labor Arbiter, is immediately executory even pending appeal. The employer has the obligation to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court. (Wenphil Corporation vs. Abing, G.R. No. 207983, April 7, 2014)
Under Article 229 of the Labor Code, “the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation, or at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement.”
Hence, when the Labor Arbiter renders a Decision finding illegal dismissal and in it there is an order of reinstatement, the reinstatement aspect is immediately executory even if the employer appeals the Labor Arbiter’s Decision.
The employee may demand the payment of salaries and benefits due to an employee who should have been reinstated in accordance with the LA order of reinstatement.
For information purposes of parties involved in a suit, below is a sample demand for the payment of salaries and benefits pursuant to reinstatement pending appeal:
___________, 20____
EMPLOYER
Xxx address
ATTENTION: THE PRESIDENT / GENERAL MANAGER
HUMAN RESOURCE MANAGER
CC: HON. LABOR ARBITER
NATIONAL LABOR RELATIONS COMMISSION
PPSTA Building
Banawe, Quezon City
KALABANG LAWYER
Counsel for Respondents
Address ng Kalaban
To Whom It May Concern:
We are writing in behalf of our client, JUAN DELA CRUZ, regarding the payment of his salary and benefits for the period covering his reinstatement in accordance with the immediately executory decision of the Hon. Labor Arbiter in the NLRC Case No. NCR 12345, to wit:
“WHEREFORE, premises considered, the complaint for illegal dismissal with prayer for payment of attorney’s fees filed by Juan Dela Cruz against Employer on _____, 2020 is hereby GRANTED.
Respondent Employer is enjoined to REINSTATE the complainant to his former position without loss of seniority rights and other privileges, and to pay his full backwages, inclusive allowances and to other benefits or their monetary equivalent computed from the time compensation was withheld from them up to the time of their actual reinstatement. The reinstatement aspect is immediately executory (even pending appeal). Both the complainant and the respondent company are enjoined to submit a report of compliance within ten (10) calendar days from receipt of this decision.
Accordingly, respondent Employer is held liable to pay the complainant backwages and attorney’s fees equivalent to 10% of the judgment award in aggregate amount of PhP________, broken down as follows:
Xxx
All other claims are deemed DISMISSED for lack of merit.
SO ORDERED.”
Our client’s reinstatement should have commenced on _________, 20_____ after the Decision of the Hon. Labor Arbiter on ______, 20_______. As of now, Employer has not yet reinstated our client. The reinstatement aspect of the Hon. Labor Arbiter’s Decision is immediately executory and the liability to pay the salaries and benefits of the employee accordingly accrues.
Thus, demand is hereby being made for the payment of the salaries and benefits of our client, as of _______, 20____, as follows:
Period covered of this writing: __________, 20____ to ________, 20____ (7.5 months)
Basic Salary
- _____ 20_____ (15 days)
PhP1,963.63 x 15 = PhP29,454.45
- _____ 20____ to _______ 20____ (6 months)
PhP43,200.00 x 6 months = PhP259,200.00
- ________ 20_____ (17 days)
PhP1,963.63 x 17 days = PhP33,381.71
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Benefits
- Regular Holiday Pay (April 9 [x2; Araw ng Kagitingan and Maundy Thursday], April 10 [Good Friday], May 1, May 25 [Eid’l Fit’r], June 12, July 31 [Eid’l Adha], and August 30)
PhP1,963.63 x 8 days = PhP15,709.04
- Rice, Meal, Clothing & Laundry Allowances
PhP3,600.00 per month x 7.5 months = PhP27,000.00
- Accrued 13th Month Pay
PhP43,200.00 x 7.5 months / 12 = PhP27,000.00
- Service Incentive Leave Pay (SILP)
PhP1,963.63 x 5 / 12 = PhP818.18
Thus:
Basic Salary
___ 20____ PhP 29,454.45
____ 20___ to____ 20__ 259,200.00
_____ 20___ 33,381.71 PhP322,036.16
Benefits Due and Payable
Regular Holiday Pay PhP 15,709.04
Rice, Meal, Clothing &
Laundry Allowances 27,000.00 42,709.04
TOTAL SALARIES AND BENEFITS DUE PhP364,745.20
Accrued Benefits
13th Month Pay PhP27,000.00
SILP 818.18
TOTAL ACCRUED BENEFITS PhP27,818.18
In this regard, demand is hereby being made for the payment of the sum of THREE HUNDRED SIXTY FOUR THOUSAND SEVEN HUNDRED FORTY FIVE 20/100 (PhP364,745.20) representing salaries and benefits due, within ten (10) days from this notice and to comply with the Hon. Labor Arbiter’s reinstatement order.
Otherwise, our client will be constrained to take the necessary legal action to protect his interests considering that refusal to pay employee’s salary and to reinstate amounts to constructive dismissal, among others.
Looking forward to your immediate attention on this matter.
ATTY. XXXX
Counsel for Juan Dela Cruz
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