legal Free Legal Advice

[bokam]

nzchick,

 

based from ur questions, i gather that is not phil law ur studying. Please keep in mind that some states may not have the same/identical principles as others.

[houseboy]

Good day.

 

I am working for Company A since July of last year. Our company has been experiencing heavy losses for the past year and the mother company has decided to close it. I have been having some disputes with my HR manager regarding the length of service rendered for the company. Since they are going to pay us our separation pay, I want to get what is due me.

 

Before I was hired by Company A, I was sent to abroad for training by Company A's sister company, which we now call Company B. Before going abroad for training, we signed a contract with Company B that we will work for them for 2 years after we have finished our training and that was in March 2001. We signed that contract and we proceeded with our training.

 

Upon the completion of our 2 years training, Company B has come to an agreement with Company A that my employment with Company A is to be transferred to Company B. They made us sign a contract, and this is what was stated in the contract:

 

Upon your successful completion of a 2 year training course abroad sponsored by CompanyA, and your subsequent return to your regular employment in the Philippines, Company B is pleased to inform you that Companies A and B have entered into an agreement whereby your employment with Company A shall be transferred to Company B, under the terms and conditions to be decided by both parties.

 

Since I was transferred to Company B, I was expecting that they will honor the length of service I have rendered with company A. Much to my dismay, they told me that they will not honor my previous employment because they said that I was just a trainee and not an employee. They told me that since there was no contract signed indicating that I was an employee of Company A, I am just a trainee and that I am not entitled to enjoy the benefits that was being given to regular employees. I told them that eventhough I don't have any proof or contract, the mere fact that I have paid my SSS contributions under Company A and the fact that I have continued my services with Company A for more than a year states that I am already a regular employee of Company A (this is just what I have read from the Labor Law).

 

Do I have the right to ask them to credit the two years of training I have rendered under Company A, thus making my total length of service to 3+ instead of 1? I want to get the 3 years of service because I want them to compute my separation pay based on the total number of years rendered for both co. A and B. They have tendered an offer that they will pay me 1 year plus they will give me another 1 year, making it appear that it is my "utang na loob" if they will pay me 2 years of service.

 

Hope you can shed light on this matter.

 

Many thanks!!!

 

:mtc:

[totoybola]

May panalo ka dyan tol. I won't go into legal details muna coz I just woke up at antok pa ako, but suffice it to say you have a very good chance of winning. However, if your employer/s decide to play hardball by refusing to settle once you've filed a complaint, matagalan din ang paghihintay. So its a choice between getting less money now or getting more later (di sure kelan). As a middle ground, I suggest you file a complaint before the NLRC then negotiate with them during the preliminary conference stage. Maybe you can negotiate for a better offer then .If your employers (plural, coz you will be impleading both A and are adverse to the prospect of a prolonged legal battle, they just might improve their offer. Sympre they also might not.Depende talaga sa timpla ng employer mo. Meron kasi dyan na prinsipyo pinapairal. If they feel talagang di ka dapat makakuha ng 3-yr separation pay, ilalaban nila. Of course, on your part, you also don't want to incur legal expenses. You simply want a better offer. Pero sympre, if prinsipyo pinapairal mo and you want to get 3 years worth of benefits, then ibang usapan na yon. Decide ka muna ngayon pa lang kung handa ka maghintay na mahaba-habang panahon para sa prinsipyo na yan. Kung hindi, take the offer (now or before the labor arbiter) and run.

[totoybola]

correction sa taas:"impleading both A and B..."

"suffice it to say that..."

[niceguy_7377]

What is the citizenship of a 26 year old person born in the US having both parents as Filipino? If he has a US passport already, can he still be a Filipino citizen? Will his citizenship be retained? Where will he pay taxes? US Gov or Phil Gov?

[TeeUp]

What is the citizenship of a 26 year old person born in the US having both parents as Filipino? If he has a US passport already, can he still be a Filipino citizen? Will his citizenship be retained? Where will he pay taxes? US Gov or Phil Gov?

being born to filipino parents, he is a filipino under philippine laws, which confer citizenship by reason of blood relations (jus sanguines). on the other hand, having adopted the principle of jus soli, US laws confer american citizenship to anyone who is born inside US territory irrespective of his parents' citizenship.

 

it is of no consquence under philippine laws if he is recognized as an american and a holder of a US passport under US laws or by any country for that matter. what matters to the philippines is that he is a filipino. by the same token what is important under US laws is that he is an american even if other countries recognize him as their own.

 

that being said, he is a filipino under philippine laws and an american under US laws. as such, he owes allegiance to each of the two countries for which he is duty bound to contribute in the raising of funds (called taxes) for the support and survival of each of the two states in consideration for the protection said countries afford to him as a citizen.

 

this however speaks of taxation in general. as to which specific taxes (excise, income, property, vat, etc...) he is under obligation to pay, depends on the tax laws of each of the two countries. it should be further be remembered that the extent to which each country may effectively enforce its tax laws on him as a citizen is entirely another issue.

 

peace!

Edited August 7, 2004 by TeeUp

[houseboy]

May panalo ka dyan tol. I won't go into legal details muna coz I just woke up at antok pa ako, but suffice it to say you have a very good chance of winning. However, if your employer/s decide to play hardball by refusing to settle once you've filed a complaint, matagalan din ang paghihintay. So its a choice between getting less money now or getting more later (di sure kelan). As a middle ground, I suggest you file a complaint before the NLRC then negotiate with them during the preliminary conference stage. Maybe you can negotiate for a better offer then .If your employers (plural, coz you will be impleading both A and are adverse to the prospect of a prolonged legal battle, they just might improve their offer. Sympre they also might not.Depende talaga sa timpla ng employer mo. Meron kasi dyan na prinsipyo pinapairal. If they feel talagang di ka dapat makakuha ng 3-yr separation pay, ilalaban nila. Of course, on your part, you also don't want to incur legal expenses. You simply want a better offer. Pero sympre, if prinsipyo pinapairal mo and you want to get 3 years worth of benefits, then ibang usapan na yon. Decide ka muna ngayon pa lang kung handa ka maghintay na mahaba-habang panahon para sa prinsipyo na yan. Kung hindi, take the offer (now or before the labor arbiter) and run.

 

Thank you Sir!

 

Ewan ko kung prinsipyo yung pinapairal ng employers ko, pero sa tingin ko e hindi. HR head kasi namin ang nakikipag-usap sa President namin (Japanese). Dahil nga siguro dahil sa sulsol ng HR head namin, kala ng Japanese na Pres namin e tama na yung HR head. Kaya nga binigyan ako ng offer ng President para naman daw hindi ako magtampo sa kanila. Hindi lang kasi nakakaintindi ng maayos yung HR head namin. Ewan ko ba kung bakit naging HR head yun! :sick: Yung computation nga ng SL/VL namin e hindi maintindihan. Yung length of service ko pa kaya. Tsk tsk tsk. Sabi na lang ng President namin, consult na lang daw niya sa lawyer nila. Sana ay pareho kayo ng payo para naman mas malaki matatanggap ko.

 

Salamat po uli! Sa uulitin. :cool:

[dj_flip03]

There are current issues on the creative audigy drivers for windows xp, you need to get the latest driver to fix it, if you use the cd installer driver then you'll get blue screen/autoreboot issues.

Damn, you're right!!! I downloaded the latest driver and it worked!!!

 

Now, one more thing: I used a pirated XP os , now I got 15 days left to activate it. Will i lose everything here if I dont activate it? (obviously, I can't activate it cause its an illegal copy).

Edited August 7, 2004 by dj_flip03

[izzecoh]

bakit ang monitor ko nag "OUT OF RANGE" everytime i install the new video driver.... is it in the OS nya or s CMOS config...

[l3v3l]

bakit ang monitor ko nag "OUT OF RANGE" everytime i install the new video driver.... is it in the OS nya or s CMOS config...

try to adjust your VGA Driver frequency to 60Hz.. your monitor might not support higher refresh rates...

[l3v3l]

can anybody accompany me buy a pc?heheheh

sure....

[l3v3l]

pre tanong ko lang saan sa manila pinaka mura mag assemble pc na malinis at walang fake parts... meron daw kasing labas ang asus na fake gawa china na naka kalat sa manila o pinas...salamat!!

 

:cool:

actually, most MB makers have transfered shop from taiwan to china.. so you would mostly see "Made in China/Assmbled in China" MBs from companies like ASUS, GIGABYTE, ABIT and the rest...

[younghermit]

What is the citizenship of a 26 year old person born in the US having both parents as Filipino? If he has a US passport already, can he still be a Filipino citizen? Will his citizenship be retained? Where will he pay taxes? US Gov or Phil Gov?

Lucky guy! A pure DUAL CITIZEN.

 

As for the consequences, the laws of the two nations (US and RP) will govern as far as practicable (Teeup has already given sufficient explanation for this).

 

Taxwise= The general rule is that HE is the tax subject of the state where he is a RESIDENT.

[younghermit]

1. Anybody know other solutions for spyware other than Ad Aware?

 

2. Other than tweaking the registry, anybody know how to fix the home page url for internet explorer in case a malicious program turns the default 'home page' into a particular site?

 

3. anybody know what this site is: (http://www.windowws.cc/hp.htm?id=80.) WARNING: please don't go there if you dont know what you are doing.

[menime]

Damn, you're right!!! I downloaded the latest driver and it worked!!!

 

Now, one more thing: I used a pirated XP os , now I got 15 days left to activate it. Will i lose everything here if I dont activate it? (obviously, I can't activate it cause its an illegal copy).

Is your copy of windows saying that you need to activate it, mine doesn't I'm also using a pirated copy of windows, where did you buy your cd? The ones that you get from your greenhills tiange doesn't need to be activated because they pirated the corporate edition of winxp pro.

[bokam]

niceguy,

 

for additionl refernce re: dual citizenship, check out Republic Act 9255, Citizn Retention Act of 2003.

[Macy]

for the group... since you do not have a so-called Lounge for the not-so-serious messages....

 

The Stella Awards

The "Stella" awards rank up there with the Darwin awards. Stella Liebeck is the 81 year old lady who spilled coffee on herself and sued McDonalds. This case inspired an annual award: The "Stella" Award - for the most frivolous lawsuits in the U. S.

 

The following are this year's candidates:

 

1. January 2000: Kathleen Robertson of Austin, Texas was awarded $780,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The owners of the store were understandably surprised at the verdict, considering the misbehaving little brat was Ms. Robertson's son.

 

2. June 1998: A 19 year old Carl Truman of Los Angeles won $74,000 and medical expenses when his neighbor ran over his hand with a Honda Accord. Mr. Truman apparently didn't notice there was someone at the wheel of the car, when he was trying to steal his neighbor's hubcaps.

 

3. October 1998: A Terrence Dickson of Bristol, Pennsylvania was leaving a house he had just finished robbing by way of the garage. He was not able to get the garage door to go up since the automatic door opener was malfunctioning. He couldn't re-enter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation. Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found, and a large bag of dry dog food. He sued the homeowner's insurance claiming the situation caused him undue mental anguish. The jury agreed to the tune of half a million dollars.

 

4. October 1999: Jerry Williams of Little Rock, Arkansas was awarded $14,500 and medical expenses after being bitten on the buttocks by his next door neighbor's beagle. The beagle was on a chain in its owner's fenced-in yard. The award was less than sought because the jury felt the dog might have been just a little provoked at the time by Mr. Williams who was shooting it repeatedly with a pellet gun.

 

5. May 2000: A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania $113,500 after she slipped on a soft drink and broke her coccyx. The beverage was on the floor because Ms. Carson threw it at her boyfriend 30 seconds earlier during an argument.

 

6. December 1997: Kara Alton of Claymont, Delaware successfully sued the owner of a night club in a neighboring city when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms. Walton was trying to sneak through the window in the ladies room to avoid paying the $3.50 cover charge. She was awarded $12,000 and dental expenses.

 

And the winner is:

Mr. Merv Grazinski of Oklahoma City. In November 2000 Mr. Grazinski purchased a brand new 32 foot Winnebago motor home. On his first trip home, having joined the freeway, he set the cruise control at 70 mph and calmly left the drivers seat to go into the back and make himself a cup of coffee. Not surprisingly, the Winnie left the freeway, crashed and overturned. Mr. Grazinski sued Winnebago for not advising him

in the handbook that he couldn't actually do this. He was awarded $1,750,000 plus a new Winnie. (Winnebago actually changed their handbooks on the back of their court case, just in case there are any other complete morons buying their vehicles).

[younghermit]

niceguy,

 

for additionl refernce re: dual citizenship, check out Republic Act 9255, Citizn Retention Act of 2003.

Bokam, I think you are referring to RA 9225. However, I don't think that it applies in this case. It only applies to those natural born Filipinos who got naturalized in other countries.

[-=extreme=-]

Damn, you're right!!! I downloaded the latest driver and it worked!!!

 

Now, one more thing: I used a pirated XP os , now I got 15 days left to activate it. Will i lose everything here if I dont activate it? (obviously, I can't activate it cause its an illegal copy).

I think you got a pirated copy of windows xp retail that needs activation, you need to get the Corporate version that doesn't need any activation. you search for a crack/patch for retail that will override your activation.

[bokam]

Younghermit,

 

yup, ur corect dat it doesnt aply directly to d case hence d phrase "additional" reference on dual citizenship.

[dj_flip03]

menime & extreme - Damn those vendors!!! They didnt tell me anything about that. I'm using WinXP Home Edition. If I buy the corporate edition and use it, am I gonna start from scratch again?

[Chi-Chi]

Which part do you not understand?

 

Let's try to directly address the problem:

 

Short answer. (assuming that the jurisdiction adopts the principle of stare decisis)

1.) If P. v. Clarke is decided by the highest court- it is a binding precedent. Then all courts in the future from the lowest to the highest will be bound to follow it in so far as it is applicable.

2.) If P. v. Clarke is decided by any lower court (other than the highest court) it will only have a persuasive effect (not binding, but maybe adopted) with respect to all the courts of the land, until the Highest Court  makes a definite ruling thereon.

The degree of persuasiveness is greater depending on the level of the court which decided it. Hence, a court of appeals decision will be more persuasive than a decision issued by the lowest court of the land.

 

Another Analysis part:

P v. Clarke is a decided case right?

The facts however do not disclose which Court have issued the FINAL Ruling on the case. Take note that even decisions of lower courts can become final for failure t file the necessary appeal during a definite period.

 

So if P. v. Clarke decided by the Highest Court of the Land (I don't know which Court in NZ is that but here in RP its the Supreme Court), then it becomes a BINDING PRECEDENT if the jurisdiction adopts the principle of stare decisis.

If the jurisdiction does not follow stare decisis, the case (P. v. Clarke) can not be used in other cases, in other words, not binding nor even persuasive.

Lower Courts can not disregard BINDING PRECEDENTS, and they have to follow it for such cases have the force of law or they would risk being overturned by a higher court on appeal. Only the Highest Court can overturn such Binding Precedents.

 

Let us now assume that NZ follows stare decisis (otherwise, further discussion would be pointless)

Now if P. v. Clarke was decided by Courts other than the Highest Court of the Land, then it is still a precedent (because it was decided at an earlier time) but it is NOT a BINDING PRECEDENT. This means that the reasons therein (in the case of Clarke) only have a Persuasive nature, which the Courts can adopt or disregard.

 

Now all the above, applies only to the "Doctrines" (rules of law) enunciated by the Case - that is the subject matter which the case intends to address. So in our example P. v. Clarke deals with "theft" and "injuring with intent", so it will apply to:

1.) All cases with facts similar to P. v. Clarke

2.) Theft cases with "injuring with intent" in so far as the reasoning in P. v. Clarke is applicable.

I somehow understand... so u mean persuasive ung court of appeal sa ibang cases similar to this case that's held sa court of appeal and below.. kasi kung sa supreme court, it means na kailangan binding kasi big cases un, somehow changing of laws na un. Am i right somehow?

 

Here's the situation to be more specific.

 

R v Clarke is a case that sentenced clarke of theft, injuring with intent and home invasion.

 

Clarke appealed to the Court of Appeal and his appeal was accepted, his sentence became theft and injuring with intent only..

 

Now here's the ques..

R v Clarke is a precedent. As such, indicate whether it is binding or persuasive on the following Courts in a similar case:

 

a) The High Court

The Supreme Court

c) District Courts

d) The Court of Appeal

 

Sorry guys.. super nahihilo lang talgaa ako I sound dumb i know but id rather than not know the answers

Edited August 8, 2004 by nzchick

[menime]

menime & extreme - Damn those vendors!!! They didnt tell me anything about that. I'm using WinXP Home Edition. If I buy the corporate edition and use it, am I gonna start from scratch again?

It would be better to start from scratch, but i guess you can upgrade your existing os from home edition to xp pro, you wouldn't have to change anything if it works but havent tried it myself though.

[JUPITER]

Use Spybot Search and Destroy. Much better than adaware.

 

or if u are sick of viruses, buy a Mac. or my Apple iBook running on OS X. hehhee

[dj_flip03]

It would be better to start from scratch, but i guess you can upgrade your existing os from home edition to xp pro, you wouldn't have to change anything if it works but havent tried it myself though.

I guess I have no choice but to try it, huh? Well, Hope this will be my last problem. Thanks a lot, dude! :cool: