legal Free Legal Advice

[fauxhead]

I forgot to add. If the case against you is lodged only at the Metropolitan Trial Courts or Municipal Trial Courts (MTCs and MCTCs), forget about it. Wala sila power to issue HDOs. Only Regional Trial Courts have the power to do that. That means you must be accused of a crime punishable by 6 years up before a hold departure order can be issued against you.

 

 

Fastest way: get an NBI clearance. In 10 seconds they will be able to determine if there's ANYTHING against you.

[dickyryu]

Fastest way: get an NBI clearance. In 10 seconds they will be able to determine if there's ANYTHING against you.

 

 

eh pano po pag child custody case?

[azayco]

Fastest way: get an NBI clearance. In 10 seconds they will be able to determine if there's ANYTHING against you.

 

And if they find anything against you, derecho detention cell ka na sa likod nung clearance center! :boo:

[Dr_PepPeR]

I forgot to add. If the case against you is lodged only at the Metropolitan Trial Courts or Municipal Trial Courts (MTCs and MCTCs), forget about it. Wala sila power to issue HDOs. Only Regional Trial Courts have the power to do that. That means you must be accused of a crime punishable by 6 years up before a hold departure order can be issued against you.

 

As far as I know you apply for a hold departure order from the Department of Justice. They will ask for a copy of the complaint affidavit which you filed in the RTC and then they will issue first a watchlist order, and then after a certain period of time, I now forget what it is, you can have the hold departure order issued. You then simply file the watchlist order and the hold departure order with the Bureau of Immigration for them to enforce it at the points of departure.

[pol22366]

The HDO is obtained from the Regional Trial Court where the criminal case is pending. They should copy furnish the DOJ and BID. If you want to check if you have an HDO against you you go to the BID.

[nightingale]

EB? sama ako pwede? :upside:

[scott11373]

If you have a pending civil lawsuit in the Phils--can you travel outside the country?

[jpatricks1]

Sirs your input please

 

My gf's brother got married early. They had a son and broke up in good terms after a few years.

 

He then met another girl. Like him, she had a kid from a previous relationship though she wasn't married. They decided to live together and had two daughters. While 8 months pregnant on their 2nd daughter, he discovered she was cheating on him. When the 2nd daughter was 3 months old, she broke up with my gf's brother to be with the other guy. She left the 2 girls and even had the guts to ask for 10-thousand pesos "to start a new life".

 

After a year, she asked to see the 2 girls again. She was never deprived the right to see her kids even though she abandoned them. Finally one day while visiting, she took the 2 girls and ran off with them.

 

Now she's depriving the father the right to see his 2 little girls. She even said on a text message that "gagamitin ko ang mga bata laban sayo".

 

What's the best course of action for the father to see his daughters again? Thank you very much

[ela_bat]

If you have a pending civil lawsuit in the Phils--can you travel outside the country?

 

 

yup

[pol22366]

Sirs your input please

 

My gf's brother got married early. They had a son and broke up in good terms after a few years.

 

He then met another girl. Like him, she had a kid from a previous relationship though she wasn't married. They decided to live together and had two daughters. While 8 months pregnant on their 2nd daughter, he discovered she was cheating on him. When the 2nd daughter was 3 months old, she broke up with my gf's brother to be with the other guy. She left the 2 girls and even had the guts to ask for 10-thousand pesos "to start a new life".

 

After a year, she asked to see the 2 girls again. She was never deprived the right to see her kids even though she abandoned them. Finally one day while visiting, she took the 2 girls and ran off with them.

 

Now she's depriving the father the right to see his 2 little girls. She even said on a text message that "gagamitin ko ang mga bata laban sayo".

 

What's the best course of action for the father to see his daughters again? Thank you very much

 

There are many facts that must be clarified first. Did your GF's brother recognize her two daughters??? Did he sign the affidavit of acknowledgment at the back of their birth certificates??? If yes then he can ask for full or conditional custody with the Courts. He can also ask for full parental authority, if he can prove that the mother is not a good parent. If your GF's brother did not acknowledge the children, then he is not considered as the father of the two children, and must first prove paternity and then ask for conditional or full custody, or full parental authority.

[TaDo1981]

I would like to ask po for help regarding this

 

I am a smartbro subscriber before, I pay on time, minsan sobra pa sa 999 ang naibabayad ko, kahit na 128KBPS lang nakukuha ko, pinagtyatyagaan ko na lang. but there came an incident ng I lost my internet connection last december that made me loose my patience with the ISP, for almost one month I keep on calling them then the only answer that I am getting is they'll gonna forward my inquiry etc. so after one month saka lang bumalik ang connection ko. I asked if there will be adjustments with the bill since wala naman akong connection for one month. Then my bill came and I found out na they just cut 200 pesos from the 999 and telling me na yun na yung adjustment sa isang buwan na wala akong internet. Nainis ako sa kanila telling them na if they could cut the service i cut na lang nila dahil hindi na ako interested. Early months of 2008 I still pay pero leaving the december bill telling them na I will not pay it. April na miss ko ang cut off nila then they disconnected the service. then charging me a certain amount for reconnection. I am not interested of reviving the service so binayaran ko na lang yung isang billing then hinayaan ko nalang na disconnected. After paying the April bill I was wondering bakit may bill ako for the month of May samantalang disconnected na ang internet ko april pa lang, then they were charging me FIVE THOUSAND PESOS, kasama na ang pre-termination fee, I was so pissed off na hinayaan ko na lang silang magpadala nang kung ano anong notice thru mail sa akin. Iba ibang law office na ang sumusulat sa akin almost every month, tumatawag sa bahay, then after a few months they are now charging me THREE THOUSAND PESOS PLUS, inconsistent, wala silang pinapadalang malinaw na breakdown ng bill, then wala pa ring hinto ang mga mails pati na ang tawag sa phone, daig ko pa ang may malaking utang sa credit card, there was this law firm telling me na i am a delinquent payer and they will charge me, publishing my name sa Manila Bulletin, PDI, or Philippine Star, grabe for 3000+ wow napaka big deal ng utang ko, I can pay the 3000, but prinsipyo ko ang nangingibabaw, Smart Bro. is such an abusive and unfair company. Aren't they violating the consumer rights, and harassing their subscriber, making the deal always in favor for them. Yeah we all sign contracts, we pay for the services, but are we getting the quality service?

[bonito99]

Sue them.

[silverapollo]

hello fellow mtc members,

anyone here who handles annulment cases???

i would like to know the process....

thank you.....

[azayco]

I would like to ask po for help regarding this

 

I am a smartbro subscriber before, I pay on time, minsan sobra pa sa 999 ang naibabayad ko, kahit na 128KBPS lang nakukuha ko, pinagtyatyagaan ko na lang. but there came an incident ng I lost my internet connection last december that made me loose my patience with the ISP, for almost one month I keep on calling them then the only answer that I am getting is they'll gonna forward my inquiry etc. so after one month saka lang bumalik ang connection ko. I asked if there will be adjustments with the bill since wala naman akong connection for one month. Then my bill came and I found out na they just cut 200 pesos from the 999 and telling me na yun na yung adjustment sa isang buwan na wala akong internet. Nainis ako sa kanila telling them na if they could cut the service i cut na lang nila dahil hindi na ako interested. Early months of 2008 I still pay pero leaving the december bill telling them na I will not pay it. April na miss ko ang cut off nila then they disconnected the service. then charging me a certain amount for reconnection. I am not interested of reviving the service so binayaran ko na lang yung isang billing then hinayaan ko nalang na disconnected. After paying the April bill I was wondering bakit may bill ako for the month of May samantalang disconnected na ang internet ko april pa lang, then they were charging me FIVE THOUSAND PESOS, kasama na ang pre-termination fee, I was so pissed off na hinayaan ko na lang silang magpadala nang kung ano anong notice thru mail sa akin. Iba ibang law office na ang sumusulat sa akin almost every month, tumatawag sa bahay, then after a few months they are now charging me THREE THOUSAND PESOS PLUS, inconsistent, wala silang pinapadalang malinaw na breakdown ng bill, then wala pa ring hinto ang mga mails pati na ang tawag sa phone, daig ko pa ang may malaking utang sa credit card, there was this law firm telling me na i am a delinquent payer and they will charge me, publishing my name sa Manila Bulletin, PDI, or Philippine Star, grabe for 3000+ wow napaka big deal ng utang ko, I can pay the 3000, but prinsipyo ko ang nangingibabaw, Smart Bro. is such an abusive and unfair company. Aren't they violating the consumer rights, and harassing their subscriber, making the deal always in favor for them. Yeah we all sign contracts, we pay for the services, but are we getting the quality service?

 

Tado!

 

I think you answered your own question. Do check your contract with PLDT-Smart.

 

At any rate, it looks to me that all these people bugging you have spent more than the P3,000 they are trying to collect in terms of time and effort. I do not think the collection agency/"law firm", which probably works on a "no-cure, no pay" basis, will haul you to court for the amount of P3,000. The filing fees alone would be enough to turn them off. (I am not saying you shouldn't pay Smart-PLDT though. I leave that to your discretion and judgment.)

 

You can go to the DTI-NCR Office and file a consumer complaint. The office is in HV Dela Costa in Salcedo Village, Makati City. You can probably work on the angles of quality of service (as you mentioned), failure to deliver the promised service, and unfair collection practice.

 

Good luck bro!

[camerlengo]

10-year old Pocholo dearly loved his pet, a fat white chicken named Smith. He fed it, gave it baths, and slept with it on his banig every night. One day, his father, hungry and exhausted from working the fields, arrived at the house and discovered that his wife has not prepared his lunch. Pocholo's father then went out and grabbed one of the chickens loitering in their backyard. Unfortunately, daddy caught slow-moving Smith; and by 12nn, daddy had consumed every last juicy morsel of Pocholo's beloved pet.

 

When Pocholo discovered the slaughter, he went to the prosecutor and filed a crminal case against his father for violation of Section 5 (h)(4) of RA 9262 resulting in psychological and emotional abuse.

 

Will the case prosper?

 

 

no, suits between families cannot prosper even if it is a special law.

[kix™]

Question lang po mga sir, this happened a few years back. Nangyari to sa isa kong barkada humiram sa kanya ng 1ooK+. usapan nila is yung humihiram sa kanya will pay for it wdin 6 mos, so pumayag sya and my frend made a loan thorough ther cooperative sa office. after giving it to him, cguro tumakbo lang 1 buwan nagkaproblema. to cut the long story short, nag awol na sa office yung humiram ng 100K, it turned out na marami pala silang hiniraman nya. of course my friend made the loan. so the person who borrowed it sent a letter thru fax that my frend plus some other names are all his loans and he is the one liable. So the cooperative made a letter to members concerned that the loans which they availed was assumed by that person. but the person never really payed the cooperative, so they filed a case against that person. Now, the cooperative made a letter saying that they are reversing their decision and they will start deducting from the salaries of the persons involved.

 

Hope u get my story, need lang ng frend ko advice. Hindi ko lam tamang step o sabihin sa kanya . Thanks po mga sir :thumbsupsmiley:

[pol22366]

Question lang po mga sir, this happened a few years back. Nangyari to sa isa kong barkada humiram sa kanya ng 1ooK+. usapan nila is yung humihiram sa kanya will pay for it wdin 6 mos, so pumayag sya and my frend made a loan thorough ther cooperative sa office. after giving it to him, cguro tumakbo lang 1 buwan nagkaproblema. to cut the long story short, nag awol na sa office yung humiram ng 100K, it turned out na marami pala silang hiniraman nya. of course my friend made the loan. so the person who borrowed it sent a letter thru fax that my frend plus some other names are all his loans and he is the one liable. So the cooperative made a letter to members concerned that the loans which they availed was assumed by that person. but the person never really payed the cooperative, so they filed a case against that person. Now, the cooperative made a letter saying that they are reversing their decision and they will start deducting from the salaries of the persons involved.

 

Hope u get my story, need lang ng frend ko advice. Hindi ko lam tamang step o sabihin sa kanya . Thanks po mga sir :thumbsupsmiley:

 

Hello Kix:

 

You said the cooperative filed a case against the awol employee, so this means that the cooperative have legally made a claim against him for the loans obtained by the members and in turn borrowed by him. These members include your friend.

 

If they have already filed the case in Court, then they cannot file another case for the same amount against the borrowers without committing unjust enrichment under the law. As the saying goes they cannot have their cake and eat it too.

 

As long as they are collecting from the awol employee they cannot institute another action for the same obligation against your friend.

[bonito99]

no, suits between families cannot prosper even if it is a special law.

 

care to explain?

[peithe]

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?

[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, 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

[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?