legal Free Legal Advice

[SamanthaJones]

As a general rule, employers have the right to transfer an employee from one work to another and a refusal by the employee to undertake such transfer would give rise to a valid cause to terminate employment. Nevertheless, if dismissal does take place and an NLRC case is brought against the employer, the employer must justify the dismissal in the said case, failure of which would make them liable for illegal dismissal. The test to determine if a transfer is valid hinges on whether the employer is able to meet its burden of proving that the transfer was not unreasonable, inconvenient or prejudicial to the employee and that it did not involve demotion in rank or diminution of salary, privileges or other benefits.

 

Looking at your situation and based on the limited information you had provided, I am of the opinion that you cannot refuse the transfer. It seems valid, considering that there was no reduction in salary and even if the exact skill sets are different, both require the employee to have customer interaction, bringing to the table only a difference in know how. You may be hard-pressed to explain to a Labor Arbiter (who is a lawyer) the material differences between a tech support personnel and a customer care agent when all he or she sees is a call center agent who, as far as he is concerned does the same thing.

 

The position of the employer may further be strengthened if they can prove that there is now a limitation in tech support needs (such as when they are losing clients for that specific service, or they are rolling together tech support and customer care into one agent). This is in furtherance of management prerogative and an incident of the business of which the employee cannot go against.

 

What I suggest you do is talk to your manager, and air your grievance about the transfer. Tell him or her that you believe that your skills are better suited for tech support rather than customer care. But if nothing happens and still you remain unsatisfied by the present position and work, you may have to contemplate moving to another company.

 

I am not sure what other information that you need but though the job is the same in nature, that is, both are taking in calls - those two jobs have different pay structure and skill sets. Newly hired technical support agents at Dell or at any call center have a higher base pay compared to Customer Care agents since one is required to have a technical background first, for customer care nothing is required except of course that you have to be proficient in the English language.

 

Now, we, tech agents. are now being transferred to cust care and they are asking us to sign a contract that will change our job designation from Senior Technical Support Analyst to Customer Care Senior Analyst. Though there will be no adjustment, we feel that is a demotion from our current standing since we literally will have to forget about our technical know how. It's like from the IT department we are being transferred as mere receptionist. Is there anything that we can do to stop the transfer?

Edited November 29, 2010 by SamanthaJones

[redblack]

I am not sure what other information that you need but though the job is the same in nature, that is, both are taking in calls - those two jobs have different pay structure and skill sets. Newly hired technical support agents at Dell or at any call center have a higher base pay compared to Customer Care agents since one is required to have a technical background first, for customer care nothing is required except of course that you have to be proficient in the English language.

 

Now, we, tech agents. are now being transferred to cust care and they are asking us to sign a contract that will change our job designation from Senior Technical Support Analyst to Customer Care Senior Analyst. Though there will be no adjustment, we feel that is a demotion from our current standing since we literally will have to forget about our technical know how. It's like from the IT department we are being transferred as mere receptionist. Is there anything that we can do to stop the transfer?

 

The question is: "Why is your company doing the transfer?"

 

Is everybody in tech support being transferred to customer care? Did they single you out or there is a whole group or department affected? Do they need to fire people if they do not transfer? Enter into a dialogue with the concerned supervisor. Try to amicably settle this matter. It may appear that this is a demotion but then again the non-diminution of salaries and the lack of change in rank (from supervisor or team leader or senior staff to entry level) does not support your conclusion.

 

Based on present jurisprudence its a toss up, fifty-fifty if you refuse the transfer and you get dismissed. There are some jurisprudence that supports your position, while some other jurisprudence argue against you. There is NO case that exactly fits your situation.

[redblack]

to our dear lawyers,

 

i have a question regarding sa hatian ng inheritance (money value) na nakuha ng lola ko (deceased)

but is shared by my lolo and 4 children (including my dad)

ang situation is like this, since malapit na makuha ung part ng lola ko,

hahatiin sa 5 ung makukuhang pera (4 children including my dad and my lolo), pero recently,

sept2010 namatay ang dad ko, question: do we still get his part? kasi ang problema,

narinig ng lola ko sa mother side one night na burol ng dad ko that they (3 other sibblings of my dad) are all talking about

whether dapat padaw ibigay ang part ng dad ko samen, my lolo is suffering from stroke and parang ung isang tita ko was planning

not to give it anymore. incase na hindi nila binigay, can we file a case about it? or anung

pwede namin magawa incase may rights naman kame at hindi nila un ibigay dahil patay na ang father ko?

thanks

 

Yes, you can get still get your part of the inheritance. It's called "rights or representation" where the compulsory heir's own heir takes his place in the line of succession where the compulsory heir had already passed away.

[SamanthaJones]

<br />The question is: "Why is your company doing the transfer?" <br /><br />Is everybody in tech support being transferred to customer care?  Did they single you out or there is a whole group or department affected?  Do they need to fire people if they do not transfer?  Enter into a dialogue with the concerned supervisor.  Try to amicably settle this matter. It may appear that this is a demotion but then again the non-diminution of salaries and the lack of change in rank (from supervisor or team leader or senior staff to entry level) does not support your conclusion.<br /><br />Based on present jurisprudence its a toss up, fifty-fifty if you refuse the transfer and you get dismissed.  There are some jurisprudence that supports your position, while some other jurisprudence argue against you.  There is NO case that exactly fits your situation.<br />

<br /><br /><br />

 

Hi thanks for answering. Not everybody in tech support is being transferred, only a selected few. We are a few agents who are trained for both skills but have retained the technical support post. Now there are a few of us who have been picked by management since apparently our metrics (customer satisfaction survey)score higher in the customer care support and they need those heads to fill up the need for that queue and to help improve this customer satisfaction scores. But based from your answer, i guess we don't have any choice. I just think that it's unfair. Like what i said your like putting your best IT person to a receptionist post.

[HardOn]

Mga Kaibigang Abogado dit sa MTC,

 

May tanong lang ako. Ano ang ibig sabihin ng Motion to Declare Defendants in Defauld and to Allow Plaintiff to Present Evidence Ex Parte.

 

At ano ang susunod sa process after nito?

 

Thanks

[lawenta]

pwede paki sagot tong case na to... tnx

 

Mr. A graduated from law school 2003, he took the bar exam that year but failed. In 2008 he immigrated to Canada... He has now dual citizenship ( Canadian and Philippine citizenship )... He plans to take the Philippine Bar exam again in 2013 or 2014.... is Mr. A still eligible to take the phil bar exam?

[redblack]

Mga Kaibigang Abogado dit sa MTC,

 

May tanong lang ako. Ano ang ibig sabihin ng Motion to Declare Defendants in Defauld and to Allow Plaintiff to Present Evidence Ex Parte.

 

At ano ang susunod sa process after nito?

 

Thanks

 

Sa court case, kapag hindi sumagot ang Defendant o ang nahahabla sa complaint ng Plaintiff, hindi ibig sabihin nito hindi na uusad ang kaso. Hihingi ang Plaintigg na ma-i-deklarang "in default" ang defendant. Kung baga sa basketball, 7pm ang laro, tapos hindi dumating yong isang team, default yong hindi sumipot, talo tuloy sila. Parang ganon ang declaration in default PERO hindi ganon ka-simple lang na idedeklara na ng judge na panalo ang Plaintiff. Kailangan pa din patunayan ng plaintiff ang lakas ng kaso nya, meaning na mayron talaga syang karapatan para maghabol ayon sa batas. Kaya yon yong kasunod nong Motion to Declare in Default is the accompanying motion for the Plaintiff to Present Evidence Ex Parte, meaning si Plaintiff lang mag-isa ang mag-pe-presenta ng kaso nya. Wala na si Defendant para i-dispute yong pinakita ni Plaintiff sa korte. Mas madali para kay plaintiff na patunayan ang kaso nya, kasi wala si Defendant para mag-object o labanan ang kaso.

[redblack]

pwede paki sagot tong case na to... tnx

 

Mr. A graduated from law school 2003, he took the bar exam that year but failed. In 2008 he immigrated to Canada... He has now dual citizenship ( Canadian and Philippine citizenship )... He plans to take the Philippine Bar exam again in 2013 or 2014.... is Mr. A still eligible to take the phil bar exam?

 

Yes, he still is eligible. I suggest he retake his fourth year though, since I don't think a review would suffice considering a good ten years had already lapsed. A lot of laws have been changed and new jurisprudence had been issued.

[cHinitababe86]

Yes, you can get still get your part of the inheritance. It's called "rights or representation" where the compulsory heir's own heir takes his place in the line of succession where the compulsory heir had already passed away.

 

thanks. another question, what if magmatigas sila na hindi ibigay, can we file a case about it?

magpatulong sa lawyer? what do we do if ganun ang mangyari?

[redblack]

thanks. another question, what if magmatigas sila na hindi ibigay, can we file a case about it?

magpatulong sa lawyer? what do we do if ganun ang mangyari?

 

Rights OF representation . . . sorry for the typo.

 

Anyway, you can file a case for the Partition of the Estate and, yes, you need a lawyer for this kasi only lawyers are allowed to appear before the Regional Trial Court. Just be prepared with the necessary documents to establish your claims as heirs (e.g. birth certificate ng dad mo, death certificate ng dad mo, birth certificate ninyong lahat). I suggest you bring on board with the plan all your brothers and sisters regarding this move. At least dahil marami kayo maghahati hindi ganon ka expensive sa inyo.

 

Although one thing to consider when undertaking this move is the cost. Compute how much you would get and how much you will pay in fees. Yon ang maging basis nyo if you want to pursue the case. Nevertheless, if the case is not cost effective, bluff nyo na lang mga Tito and Tita nyo, bring up with them na pag hindi nila kayo sinama sa hatiin, mag-ko-korte pa kayo (for the principal of it, hirit nyo na lang na bilin ng tatay nyo kaya kailangan nyo gawin, baka kasi multuhin kayo pag hindi nyo ginawa), gastos kayo pareho ng lawyers, so to avoid that ibigay nila yong tama.

[HardOn]

Sa court case, kapag hindi sumagot ang Defendant o ang nahahabla sa complaint ng Plaintiff, hindi ibig sabihin nito hindi na uusad ang kaso. Hihingi ang Plaintigg na ma-i-deklarang "in default" ang defendant. Kung baga sa basketball, 7pm ang laro, tapos hindi dumating yong isang team, default yong hindi sumipot, talo tuloy sila. Parang ganon ang declaration in default PERO hindi ganon ka-simple lang na idedeklara na ng judge na panalo ang Plaintiff. Kailangan pa din patunayan ng plaintiff ang lakas ng kaso nya, meaning na mayron talaga syang karapatan para maghabol ayon sa batas. Kaya yon yong kasunod nong Motion to Declare in Default is the accompanying motion for the Plaintiff to Present Evidence Ex Parte, meaning si Plaintiff lang mag-isa ang mag-pe-presenta ng kaso nya. Wala na si Defendant para i-dispute yong pinakita ni Plaintiff sa korte. Mas madali para kay plaintiff na patunayan ang kaso nya, kasi wala si Defendant para mag-object o labanan ang kaso.

 

Thanks sir

[dylandark]

Patulong naman po.

 

Ako po ay isang call center agent.

 

I was hire April of 2008 as a US DIRECTORY ASSISTANCE. I was not making much until i was enrolled in the premier bonus plan a year after. This is QA and CPT (call processing time - length of time that an agent is on the phone with a customer) based. The lower the time the bigger the premier bonus, the maximum that you can get is around P3000 per payout for 27 seconds CPT which is really a hard thing to do that will take years. Back then i was earning premier of more or less P900 per payout(35 sec CPT tops).

 

Then last October of 2009 i was transferred to the UK DIRECTORY ASSISTANCE where all things change in a positive way. I am automatically enrolled to the premier bonus plan without performing other acts to be enrolled. The bonus there is QA based and just being nice to the customer, NO PRESSURE WITH THE CPT REQUIREMENTS you can stay on a customer within a reasonable time. I am earning a P2400+ a week premier bonus so per payout i can receive premier bonus ranging from P4800 to P5000. Both accounts are directory assistance service.

 

Then 3 weeks ago from now, me and 20 others with more or less on the same situation as i, was transferred back again to the US side. It was quick and unexpected on my part, i was logged out and was asked to go home and come back Monday for a 2 weeks refresher training in US directory. The manager told us that the UK side is overstaffed and the US side is in need of agents but without showing us proof of that fact, we asked them, of all the 100+ agents whose been with the US side and been transferred to the UK side, why we?, They said it was performance based, but i was employee of the month of july. We are chosen to fill that because we are so called "multi-skilled". I am consistently receiving the bonus pay in the UK side and not much in the US side, I felt secured already that's why i purchased some things on installment basis. For more than a year my total pay per payout(every 2 weeks) is approximately P14000-15000 but now i wouldn't be so sure if i will be getting an amount near that. I just received my pay yesterday it was P7800 only.

 

Some people told me to file a case for constructive dismissal, if so how do i file it? whats the process? But before i do that i just want to hear some other options that i may turn to, do i have a case here? Ive research some info and found out that those acts of transferring are management prerogatives but with limitations and exceptions to follow. Same thing with bonus and benefits which the employer has the power to give and the power to take away but also with limitations, i am enjoying the UK premier bonus for more than a year now and they have been practicing that performance incentive bonus since they launch the company about 5 or 6 years ago. Please help me with this. Thank you so much. More power.

[redblack]

Patulong naman po.

 

Ako po ay isang call center agent.

 

I was hire April of 2008 as a US DIRECTORY ASSISTANCE. I was not making much until i was enrolled in the premier bonus plan a year after. This is QA and CPT (call processing time - length of time that an agent is on the phone with a customer) based. The lower the time the bigger the premier bonus, the maximum that you can get is around P3000 per payout for 27 seconds CPT which is really a hard thing to do that will take years. Back then i was earning premier of more or less P900 per payout(35 sec CPT tops).

 

Then last October of 2009 i was transferred to the UK DIRECTORY ASSISTANCE where all things change in a positive way. I am automatically enrolled to the premier bonus plan without performing other acts to be enrolled. The bonus there is QA based and just being nice to the customer, NO PRESSURE WITH THE CPT REQUIREMENTS you can stay on a customer within a reasonable time. I am earning a P2400+ a week premier bonus so per payout i can receive premier bonus ranging from P4800 to P5000. Both accounts are directory assistance service.

 

Then 3 weeks ago from now, me and 20 others with more or less on the same situation as i, was transferred back again to the US side. It was quick and unexpected on my part, i was logged out and was asked to go home and come back Monday for a 2 weeks refresher training in US directory. The manager told us that the UK side is overstaffed and the US side is in need of agents but without showing us proof of that fact, we asked them, of all the 100+ agents whose been with the US side and been transferred to the UK side, why we?, They said it was performance based, but i was employee of the month of july. We are chosen to fill that because we are so called "multi-skilled". I am consistently receiving the bonus pay in the UK side and not much in the US side, I felt secured already that's why i purchased some things on installment basis. For more than a year my total pay per payout(every 2 weeks) is approximately P14000-15000 but now i wouldn't be so sure if i will be getting an amount near that. I just received my pay yesterday it was P7800 only.

 

Some people told me to file a case for constructive dismissal, if so how do i file it? whats the process? But before i do that i just want to hear some other options that i may turn to, do i have a case here? Ive research some info and found out that those acts of transferring are management prerogatives but with limitations and exceptions to follow. Same thing with bonus and benefits which the employer has the power to give and the power to take away but also with limitations, i am enjoying the UK premier bonus for more than a year now and they have been practicing that performance incentive bonus since they launch the company about 5 or 6 years ago. Please help me with this. Thank you so much. More power.

 

In my opinion, this is not constructive dismissal. The compensation that was diminished is not the regular pay but some sort of performance bonuses that is not guaranteed. Read my reply to samanthajones' query posted above. Its very much the same thing.

[dylandark]

Thanks sa reply, but ive read SamanthaJones's query and i think in her case they felt as if they are being demoted but the salary and their benefits are still the same ( assuming cause theres no info about that), but in my case one of the important factors in the employer-employee relationship which is the amount of money that i usually received for the services i render is being severed. I wouldn't really mind if they transferred me to utilities or house keeping so long as i retain the usual and potential amount that i can take home every pay out. Yes its not considered salary but the performance incentive bonus has been in practice long before i started with the company and i enjoyed that privilege for more than a year. Even now that performance incentive bonus is being given to those 400+ UK side employees. Its just so happened that i am "multi-skilled" and former US side agent that i am included in the transfer.

 

In any event, do we have any right to ask our employer not to hire UK agent outside without putting us back first? If for example they hire from the outside, then could we file constructive dismissal?

[redblack]

Thanks sa reply, but ive read SamanthaJones's query and i think in her case they felt as if they are being demoted but the salary and their benefits are still the same ( assuming cause theres no info about that), but in my case one of the important factors in the employer-employee relationship which is the amount of money that i usually received for the services i render is being severed. I wouldn't really mind if they transferred me to utilities or house keeping so long as i retain the usual and potential amount that i can take home every pay out. Yes its not considered salary but the performance incentive bonus has been in practice long before i started with the company and i enjoyed that privilege for more than a year. Even now that performance incentive bonus is being given to those 400+ UK side employees. Its just so happened that i am "multi-skilled" and former US side agent that i am included in the transfer.

 

In any event, do we have any right to ask our employer not to hire UK agent outside without putting us back first? If for example they hire from the outside, then could we file constructive dismissal?

 

When I referred you to my reply to SamanthaJones, I did that so you can have an opinion on the transfer portion and a discussion on management prerogative when it comes to transfer.

 

I already answered your query on diminution of benefits. Did your employment contract specify that you will work in the UK Assistance Group only? If it was you can demand that you be returned to it as your company is bound by that contract. If however, there are no specifics, then you are bound by the prerogative of management to put you anywhere they want, so long as your rank is not lowered or the salary guaranteed under your contract is not lowered.

 

As for the bonus, a bonus is an act of generosity and as a rule is not demandable and enforceable obligation UNLESS it is an additional compensation which the employer promised and TO GIVE WITHOUT ANY CONDITION IMPOSED UPON ITS PAYMENT. If it is paid only if a certain amount of productivity is realized AS IN YOUR CASE, it is QA based and so long as you make the customer happy (for the UK Assistance), that is a condition to be entitled to the bonus. Therefore, being only an act of gratuity, this is not covered by the rule of against diminution of benefits. It follows that there is no basis for a claim of constructive dismissal, based on that rule.

 

As for demanding that you first be considered for the UK position rather than hiring outside, I suggest that you do not go out and demanding such a thing from your HR. This would only create a situation where I see you losing out and the employer taking a hard line stance against you. In tagalog, mapapag-initan ka lang. I would suggest that you bring up the matter of getting your UK post back with your supervisor or the HR citing your employee of the month status and how you are performing well in that group, tell them that the stress of a US posting may not create the same results.