legal Free Legal Advice

[ela_bat]

About LABOR issues naman ... would love to hear opinion of the experts.

 

 

case:

 

Ms. A currently is a proby employee and is due for permanency is less than a months time. Last Sept. 30, she filed for her resignation. Her immediate supervisor/boss would not want to accept/acknowledge the resignation letter since the supervisor is insisting that MS A stay for 45 days effective upon filing. THe supervisor wanter Ms A to change the effectivity of the resignation letter. Ms A consulted her "new employer" about the matter, whether she could report 45 days after but was declined since the position needs to be filled up ASAP. A week after, Ms A advised her Supervisior on this matter and insist that the initial 30 days notice is final. The supervisor was angered and tsaid that the 30 days notice should only start that day or from actual receipt (since her position was that she did not acknowledge the resignation when it was given to her last 9/30). When Ms A refuse, she hreatened to "TERMINATE" her that day for breach of Trust and confidence and no clearance will be given.

 

BTW, as an added insight, per company policy, proby employees are required 1 week notice for the effectivity of their resignation. There was no document/memo given pertaining to her being classified as a permanent employee todate.

 

 

QUESTION:

 

Does MS A's supervisor have the right to terminate her for Breach of Trust and Confidence?

 

Can Ms. A insist that the 30 days notice of her resignation should start from 9/30 even if her supervisor would not want to receive/acknowledge the said letter when it was brought to her attention?

 

 

 

MY OPINION:

 

As to the first, legally I think the supervisor has the right to terminate Ms A for Breach of Trust and COnfidence. It is the perogative of the employer to terminate the services of an employee with Just Cause. However, given the situation or the timing, I believe there is BAD FAITH if ever the supervisor decides to do so. Ofcourse, I belive that there should be due process by indicating or informing the employee what truly transpired to merit the breach of trust and confidence. Further, if there was really loss of trust and confidence, the supervisor should have immediately accepted Ms. A's resignation effective on the 30th day (or on the day itself) and no longer requested that it ammended to 45 days. What transpired clearly is a case of HARASSMENT ... trying to get back at Ms A.

 

As to the second question, the effectivity of the 30 days written notice should start from the time it was presented to the supervisor last 9/30 even if the supervisor would not want to acknowledge it. The LAW is clear when it states that what is required is submission of a written notice 30 days from the effectivity. Consent is NOT REQUIRED!!!. Also, Ms. A being a proby employee can cite the company's policy wherein proby employees only need 1 week notice.

 

WOULD APPRCIATE OPINIONS FROM LEGAL EXPERTS IN THIS FORUM ON THE SUBKECT MATTER ... What are the other legal rights of Ms A under the circumstance. If push comes to shove and she won't be given clearance, what legal case can she file?

 

 

 

As to the first question, whether or not the supervisor can terminate the employee for breach of trust and confidence despite tender of resignation, my answer is no. A company can not arbitrarily terminate an employee. The company must follow the twin notice rule plus due process.

 

As to the second question, Article 285 of the labor code is very clear. It talks about termination of the employee of the the employer - employee relationship. So the reckoning period would be the day the resignation was tendered by the employee to the employer.

 

Now as to the clearance, yan ang medyo walang clear cut rule sa law. As far as i can recall there is no rule or law which will compel an employer to issue a clearance. Duon medyo talo si employee. If somebody knows of a law re clearance would like to know that too. the next best thing would be company policy regarding clearances.

 

I hope this can help

Edited October 13, 2008 by ela_bat

[Dr_PepPeR]

About LABOR issues naman ... would love to hear opinion of the experts.

 

 

case:

 

Ms. A currently is a proby employee and is due for permanency is less than a months time. Last Sept. 30, she filed for her resignation. Her immediate supervisor/boss would not want to accept/acknowledge the resignation letter since the supervisor is insisting that MS A stay for 45 days effective upon filing. THe supervisor wanter Ms A to change the effectivity of the resignation letter. Ms A consulted her "new employer" about the matter, whether she could report 45 days after but was declined since the position needs to be filled up ASAP. A week after, Ms A advised her Supervisior on this matter and insist that the initial 30 days notice is final. The supervisor was angered and tsaid that the 30 days notice should only start that day or from actual receipt (since her position was that she did not acknowledge the resignation when it was given to her last 9/30). When Ms A refuse, she hreatened to "TERMINATE" her that day for breach of Trust and confidence and no clearance will be given.

 

BTW, as an added insight, per company policy, proby employees are required 1 week notice for the effectivity of their resignation. There was no document/memo given pertaining to her being classified as a permanent employee todate.

 

 

QUESTION:

 

Does MS A's supervisor have the right to terminate her for Breach of Trust and Confidence?

 

Can Ms. A insist that the 30 days notice of her resignation should start from 9/30 even if her supervisor would not want to receive/acknowledge the said letter when it was brought to her attention?

 

 

 

MY OPINION:

 

As to the first, legally I think the supervisor has the right to terminate Ms A for Breach of Trust and COnfidence. It is the perogative of the employer to terminate the services of an employee with Just Cause. However, given the situation or the timing, I believe there is BAD FAITH if ever the supervisor decides to do so. Ofcourse, I belive that there should be due process by indicating or informing the employee what truly transpired to merit the breach of trust and confidence. Further, if there was really loss of trust and confidence, the supervisor should have immediately accepted Ms. A's resignation effective on the 30th day (or on the day itself) and no longer requested that it ammended to 45 days. What transpired clearly is a case of HARASSMENT ... trying to get back at Ms A.

 

As to the second question, the effectivity of the 30 days written notice should start from the time it was presented to the supervisor last 9/30 even if the supervisor would not want to acknowledge it. The LAW is clear when it states that what is required is submission of a written notice 30 days from the effectivity. Consent is NOT REQUIRED!!!. Also, Ms. A being a proby employee can cite the company's policy wherein proby employees only need 1 week notice.

 

WOULD APPRCIATE OPINIONS FROM LEGAL EXPERTS IN THIS FORUM ON THE SUBKECT MATTER ... What are the other legal rights of Ms A under the circumstance. If push comes to shove and she won't be given clearance, what legal case can she file?

 

 

As to the first question, whether or not the supervisor can terminate the employee for breach of trust and confidence despite tender of resignation, my answer is no. A company can not arbitrarily terminate an employee, there must be twin notice which must be followed.

 

As to the second question, Article 285 of the labor code is very clear. It talks about termination of the employee of the the employer - employee relationship.

 

Now as to the clearance, yan ang medyo walang clear cut rule sa law. As far as i can recall there is not rule or law which will compel an employer to issue a clearance. Duon medyo talo si employer. If somebody knows of a law re clearance would like to know that too. the next best thing would be company policy regarding clearances.

 

I hope this can help

 

Since the subject is merely on probation, there is no way breach of trust and confidence can be used as a basis for termination. That reason is normally given for termination of officers, whose positions are given due to trust and confidence in them. For probies, the only reason to terminate is that they did not meet the required standards of work that should have been made clear to them at the start of their employment. Obviously there is bad faith here as the decision to terminate was given after a letter of resignation was tendered.

 

While the law requires 30 day notice for resignation, company policy only provides for one week's notice. The company policy prevails since it is more beneficial for the employee than what the law provides. So I think the 30 day notice was beyond what was required of the subject.

 

As to the clearance, if the employee does not have any outstanding financial obligations with the employer, the employer is bound to give such clearance within a reasonable time. If the employer unjustifiably refuses to do so, I believe the proper remedy would be to go to DOLE to compel the employer to show cause why it refuses to issue the clearance.

 

On the practical side of things, so long as the new employer understands the situation, the subject can be accepted for employment. As to the resignation letter, if the supervisor refuses to accept it, perhaps the secretary of the boss of the supervisor or the HR can acknowledge receipt. Even if the resignation was done within less than the prescribed period, what can the previous employer do about it, other than refuse to give a clearance, but again, so long as the subject has no financial obligation, why should the employer refuse to do so? Especially considering that the subject was still under PROBATION and is not considered a regular employee.

[peithe]

Since the subject is merely on probation, there is no way breach of trust and confidence can be used as a basis for termination. That reason is normally given for termination of officers, whose positions are given due to trust and confidence in them. For probies, the only reason to terminate is that they did not meet the required standards of work that should have been made clear to them at the start of their employment. Obviously there is bad faith here as the decision to terminate was given after a letter of resignation was tendered.

 

While the law requires 30 day notice for resignation, company policy only provides for one week's notice. The company policy prevails since it is more beneficial for the employee than what the law provides. So I think the 30 day notice was beyond what was required of the subject.

 

As to the clearance, if the employee does not have any outstanding financial obligations with the employer, the employer is bound to give such clearance within a reasonable time. If the employer unjustifiably refuses to do so, I believe the proper remedy would be to go to DOLE to compel the employer to show cause why it refuses to issue the clearance.

 

On the practical side of things, so long as the new employer understands the situation, the subject can be accepted for employment. As to the resignation letter, if the supervisor refuses to accept it, perhaps the secretary of the boss of the supervisor or the HR can acknowledge receipt. Even if the resignation was done within less than the prescribed period, what can the previous employer do about it, other than refuse to give a clearance, but again, so long as the subject has no financial obligation, why should the employer refuse to do so? Especially considering that the subject was still under PROBATION and is not considered a regular employee.

 

 

Thanks for those who gave their opinion on this matter ...

 

I am no LAWYER ... however I believe that given the initial feedback from you guys, I was able to give proper advise to Ms A on her problem.

 

As a situationer update ... This GM decided to talk to the employee and the supervisor separately yesterday. After meeting with the supervisor, the GM met and spoke with the employee advising her that the intent to resign effective 30 days from the intial notification date stays but was requested to make the turnover immediately and file for a terminal leave effective 10/14. I guess the supervisor probably realized (or was advised) that she is in a loosing position as there is no legal basis for the actions she intend to take.

 

The above course of action of the Employer is a clear sign that they have back down and they could not have effected the Lost of Trust clause for termination. Otherwise they would be subject for lawsuit as how in the hell they would able to justify that the employee even as a proby one would be terminated bec she did not meet the work standards? Kung ganun kasi, then the employer should have not requested her to extend for 45 days instead of the 30 days as what was stated in her resignation letter.

 

Now for purpose of discussion ... Can Ms A refuse to file for terminal leave and insist on going to work up to the end of the month considering that the company did not formally serve a notice of termination? My reading is the company cannot ... Ms A can continue to report to work.

[moridins79]

Now for purpose of discussion ... Can Ms A refuse to file for terminal leave and insist on going to work up to the end of the month considering that the company did not formally serve a notice of termination? My reading is the company cannot ... Ms A can continue to report to work.

 

She can work til the end of the month if she wishes but why would she? basically, she's getting paid despite not working while on terminal leave. Also, the law doesn't require a notice of termination considering she resigned from the company.

 

Just a few points.

 

• A probationary employee is one who, for a given period of time, is under observation and evaluation to determine whether or not he is qualified for permanent employment. During the probationary period, the employer is given the opportunity to observe the skill, competence and attitude of the employee while the latter seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment. The length of time is immaterial in determining the correlative rights of both the employer and the employee in dealing with each other during said period.
   
  A probationary employee enjoys only temporary employment status. In general terms, this meant that he was terminable anytime, permanent employment not having been attained in the meantime. The employer could well decide he no longer needed the probationary employee’s services or his performance fell short of expectations, etc. As long as the termination was made before the expiration of the six-month probationary period, the employer was well within his rights to sever the employer-employee relationship.
  

 

 

It is thus incorrect to assume that a probationary employee cannot be terminated due to a loss of trust and confidence. With the facts given, neither can we assume that the positiom Ms. A occupied was not embodied with trust and confidence.

 

• Acceptance of a resignation tendered by an employee is necessary to make the resignation effective.
  

 

Until accepted, Ms. A was not considered having resigned.

 

Lastly, mention has been made of the twin notice rule. However, it does not automatically apply here. Unlike the first ground for the valid termination of probationary employment which is for just cause, the second ground, which is none compliance of the reasonable standards, 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.

[peithe]

She can work til the end of the month if she wishes but why would she? basically, she's getting paid despite not working while on terminal leave. Also, the law doesn't require a notice of termination considering she resigned from the company.

 

Just a few points.

 

• A probationary employee is one who, for a given period of time, is under observation and evaluation to determine whether or not he is qualified for permanent employment. During the probationary period, the employer is given the opportunity to observe the skill, competence and attitude of the employee while the latter seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment. The length of time is immaterial in determining the correlative rights of both the employer and the employee in dealing with each other during said period.
   
  A probationary employee enjoys only temporary employment status. In general terms, this meant that he was terminable anytime, permanent employment not having been attained in the meantime. The employer could well decide he no longer needed the probationary employee’s services or his performance fell short of expectations, etc. As long as the termination was made before the expiration of the six-month probationary period, the employer was well within his rights to sever the employer-employee relationship.
  

 

 

It is thus incorrect to assume that a probationary employee cannot be terminated due to a loss of trust and confidence. With the facts given, neither can we assume that the positiom Ms. A occupied was not embodied with trust and confidence.

 

• Acceptance of a resignation tendered by an employee is necessary to make the resignation effective.
  

 

Until accepted, Ms. A was not considered having resigned.

 

Lastly, mention has been made of the twin notice rule. However, it does not automatically apply here. Unlike the first ground for the valid termination of probationary employment which is for just cause, the second ground, which is none compliance of the reasonable standards, 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 am not a lawyer but I beg to disagree with the above when you said ACCEPTANCE of the RESIGNATION of the employer is REQUIRED. What would be your basis for such?

 

Per Art. 285 of the Labor Code as Amended, only a 30 DAY PRIOR NOTICE IS REQUIRED. I think the key word there is NOTICE. It would be unfair naman for the employee if he/she intends to leave or terminate the employee-employer relationship but the other party would not agree/accept the resignation. If acceptance would be required then we probablu won't see key personel in the company moving. If you think that person is an ASSET then using your argument I will just NOT ACCEPT the resignation and he's stuck with me. I guess in reality, what happens is that the boss would at times say I don't accept your resignation. But it is probably a way of saying "PLEASE RECONSIDER" if the employee persist, I don't think there's anything legally binding.

 

It was mentioned above by PROBY employee employees can be terminated anytime ... so what if the Proby employee wants to leave/resign? Can he do so anytime? Is there a required notification period?

[peithe]

She can work til the end of the month if she wishes but why would she? basically, she's getting paid despite not working while on terminal leave. Also, the law doesn't require a notice of termination considering she resigned from the company.

 

Just a few points.

 

• A probationary employee is one who, for a given period of time, is under observation and evaluation to determine whether or not he is qualified for permanent employment. During the probationary period, the employer is given the opportunity to observe the skill, competence and attitude of the employee while the latter seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment. The length of time is immaterial in determining the correlative rights of both the employer and the employee in dealing with each other during said period.
   
  A probationary employee enjoys only temporary employment status. In general terms, this meant that he was terminable anytime, permanent employment not having been attained in the meantime. The employer could well decide he no longer needed the probationary employee’s services or his performance fell short of expectations, etc. As long as the termination was made before the expiration of the six-month probationary period, the employer was well within his rights to sever the employer-employee relationship.
  

 

 

It is thus incorrect to assume that a probationary employee cannot be terminated due to a loss of trust and confidence. With the facts given, neither can we assume that the positiom Ms. A occupied was not embodied with trust and confidence.

 

• Acceptance of a resignation tendered by an employee is necessary to make the resignation effective.
  

 

Until accepted, Ms. A was not considered having resigned.

 

Lastly, mention has been made of the twin notice rule. However, it does not automatically apply here. Unlike the first ground for the valid termination of probationary employment which is for just cause, the second ground, which is none compliance of the reasonable standards, 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 am not a lawyer but I beg to disagree with the above when you said ACCEPTANCE of the RESIGNATION of the employer is REQUIRED. What would be your basis for such?

 

Per Art. 285 of the Labor Code as Amended, only a 30 DAY PRIOR NOTICE IS REQUIRED. I think the key word there is NOTICE. It would be unfair naman for the employee if he/she intends to leave or terminate the employee-employer relationship but the other party would not agree/accept the resignation. If acceptance would be required then we probablu won't see key personel in the company moving. If you think that person is an ASSET then using your argument I will just NOT ACCEPT the resignation and he's stuck with me. I guess in reality, what happens is that the boss would at times say I don't accept your resignation. But it is probably a way of saying "PLEASE RECONSIDER" if the employee persist, I don't think there's anything legally binding.

 

It was mentioned above by PROBY employee employees can be terminated anytime ... so what if the Proby employee wants to leave/resign? Can he do so anytime? Is there a required notification period?

[Dr_PepPeR]

I am not a lawyer but I beg to disagree with the above when you said ACCEPTANCE of the RESIGNATION of the employer is REQUIRED. What would be your basis for such?

 

Per Art. 285 of the Labor Code as Amended, only a 30 DAY PRIOR NOTICE IS REQUIRED. I think the key word there is NOTICE. It would be unfair naman for the employee if he/she intends to leave or terminate the employee-employer relationship but the other party would not agree/accept the resignation. If acceptance would be required then we probablu won't see key personel in the company moving. If you think that person is an ASSET then using your argument I will just NOT ACCEPT the resignation and he's stuck with me. I guess in reality, what happens is that the boss would at times say I don't accept your resignation. But it is probably a way of saying "PLEASE RECONSIDER" if the employee persist, I don't think there's anything legally binding.

 

It was mentioned above by PROBY employee employees can be terminated anytime ... so what if the Proby employee wants to leave/resign? Can he do so anytime? Is there a required notification period?

 

I agree that mere notice will suffice. Maybe what he meant was RECEIPT. So to prove receipt, someone authorized to receive a notice should acknowledge receipt of the letter of resignation. Incidentally, while loss of trust or confidence may be a valid reason for termination, it also comes across as not meeting the standards set. Which is why for practical purposes, the latter is the most common way of terminating a probie, no further explanation or paperwork necessary.

[cydney_maldita]

here's the scenario...

we (takashi and i) worked for my tita then d kami pinasweldo,nag bigay kami ng sapat na panahon at oras till one time we politely asked my tita na baka pwede maka sweldo na ...peroang ginawa nya nag declare sya bigla na di sya mag papa sweldo dahil nasira yung pc then we talked sa technician whom she mentioned the first statement of the tech was nagka virus due to SPYWARE na nakuha ng mag open yung isang staff ng ol games..(during that time 2 weeks n kaming nde nag wowork sa kanya) then nag bigay p kami ng ilang panahon.yet useless so my workmate made his first moveand that is to file a blotter against I-LINK downloads and copiers...

wednesday night nagharapharap sa brgy...things didnt turned out good the chairman kept on considering yung nirereklamo namin na tao as my relative..then our x boss wants to give us a total salary of P200.00 (two hundred pesos) na ibibigay pa on the 27th of november.then aside from that sine ng may mag complain sa salary bigla na lang sya nag dedeclare na madaming nawala sa sales etc....consider this if d pala kami nag complain e wla sya i rereklamo na may nawala...

malinis ang kunsensya naming mga nag work sa kanya na wala kaming binago sa sales or whatever...

the nature of the business basically deals sa downloads and cd burn (pirating) but our primaryconcern here ay yung salary but now d n yun ang concern namin kundi yung truth lang...

may laban b kami nangyari kasi ito dito sa bulacan, and 2 weeks from now lalabas n yung certificate sa brgy para pwede n kaming mag file ng case..

may recorded naman kami na usapan with the technician then some petty (maybe petty) txt msgs from my tita.kasi yung chairman sabi nya mahina ang sales kaya daw wlang ipapa sweldo..then my tita naman super lakas ng loob kasi may money sya..please help

[cydney_maldita]

and in addition verbalagreement lang kasi when my tita appointed us..yet sa blotter clear na nakasulat na itatayo ang business and "sila takashi" yan ang word na nakalagay...

[cydney_maldita]

and heres another one, we worked there for 23 days pero during the first week wala pang record book and after a week lang sila nag buy ng record book...my tita claims na 12 days lang kami nag work thou ang totoo ay 1month ...pero nag declare n lang kami na 23 days, including sundays...

[cydney_maldita]

help naman oh!!

[peithe]

I agree that mere notice will suffice. Maybe what he meant was RECEIPT. So to prove receipt, someone authorized to receive a notice should acknowledge receipt of the letter of resignation. Incidentally, while loss of trust or confidence may be a valid reason for termination, it also comes across as not meeting the standards set. Which is why for practical purposes, the latter is the most common way of terminating a probie, no further explanation or paperwork necessary.

 

 

As the case mentioned the conflict arised when the employee which is still on Proby status tendered his resignation but the Boss refuse to acknowledge/receive it since she insist for a 45 day notice be given which was not acceptable to the employee. The employee stood by the 30 days but as a courtesy said she will talk to to the new employer if she would be able to give an extension or her start date. Unfortunately it can't be done so the employee get back at the boss after almost 2 weeks and advise that effectivity is really 30 days from the time she tendered the resignation (which was not acknowledge).

 

Since employee was acting in good faith, she did not bother to let other people receive the said letter although the resignation is common knowledge in the office.

 

In this scenario, given the boss refusal to receive the resignation because as she said "I wont sign it unless you change the effectivity date to 45 days thereafter" does the employee have a case?

 

Also if the status of an employee is on PROBY and wants to resign, what would be the required # of day prior notice?

[pilipsandiego]

questions sirs,

 

if one won a case for damage in the rtc level, and wants to make an ad in a newspaper stating the court's decision in its full text glory (of course with a disclaimer that the losing party can still appeal the decision or even say that the decision is already on appeal).

 

can it be done?

[bonito99]

help naman oh!!

 

 

Ano ang gusto mong mangyari?

[bonito99]

questions sirs,

 

if one won a case for damage in the rtc level, and wants to make an ad in a newspaper stating the court's decision in its full text glory (of course with a disclaimer that the losing party can still appeal the decision or even say that the decision is already on appeal).

 

can it be done?

 

What for?

 

I suggest that you wait for the final entry of judgment, if no one will appeal the decision.