[Legal] Questions on Employment

[Jedi_Warrior]

Our company terminated all the employees last Sept. 7, 2001 but up to now they haven't paid our retirement benefits, separation pay, tax refunds, and pay for worked days (the last days). Employees with 10 years and above of service are entitled to retirement benefits while those with less than 10 years in service by law should be given 50% of their salary times years in service.

Those who retired earlier (before Sept. 7, nakahalata na ganun ang mangyayari) got their retirement benefits only. But all taxes had been deducted, balance from loans from SSS, Pag-ibig and even other private companies like insurance companies were deducted also. But the company did not remit all of these to the agencies or companies concerned.

What do you think we should do? Any legal remedies that we can pursue? Thanks.

[Leigh]

Hope you can answer this thread, maybe eventually we can put all the questions on Employment here :)

[eponine0907]

Originally posted by Jedi_Warrior
Our company terminated all the employees last Sept. 7, 2001 but up to now they haven't paid our retirement benefits, separation pay, tax refunds, and pay for worked days (the last days). Employees with 10 years and above of service are entitled to retirement benefits while those with less than 10 years in service by law should be given 50% of their salary times years in service.

Those who retired earlier (before Sept. 7, nakahalata na ganun ang mangyayari) got their retirement benefits only. But all taxes had been deducted, balance from loans from SSS, Pag-ibig and even other private companies like insurance companies were deducted also. But the company did not remit all of these to the agencies or companies concerned.

What do you think we should do? Any legal remedies that we can pursue? Thanks.

hi. hope this helps.

first of all, determine why the company terminated the services of all its employees. nalulugi na ba yung company? magsasara na ba? if this is the case, then you guys should have been notified at least 30 days before termination, and the company should have notified the DOLE as well. if management failed to give you advanced notice, then you can say that you have been illegally dismissed, and you can file a case with the labor arbiter.

assuming that they complied with the two-notice rule, your separation pay, regardless of number of years of service, should be equivalent to one month's salary for every year of service. the retirement pay is not mandatory; it should be contained in your CBA or in a separate contract.

with regard to the unremitted SSS and Pag-Ibig contributions, you can inform the SSS that your contributions were not remitted, and show them your payslips as evidence na kinakaltasan kayo. if and when you need to take out a loan, the SSS will grant the loan and run after the company.

legal beagles, anyone, help. :)



:blossom:

[sedfrey]

Originally posted by eponine0907


hi. hope this helps.
Pag-Ibig contributions, you can inform the SSS that your contributions were not remitted, and show them your payslips as evidence na kinakaltasan kayo. if and when you need to take out a loan, the SSS will grant the loan and run after the company.

legal beagles, anyone, help. :)



:blossom:

Hi eponine!

I have nothing more to add. To summarize your points (check if correct)

1. find out cause for termination

2. find out if you obtained notice that you will be terminated.

3. if you obtained notice, file case to obtain separation pay and,or retirement pay.

4. if you did not obtain notice, your dismissal was illegal. you can file for reinstatement and backwages.

[Jonga]

got a question...

our company tells us that we are self-employed, that we are 'consultants'. But we are still governed by their policies, pay withholding tax, to make it short....working like a contractual.


what are the differnce between self-employed and contractual? are they the same? comparable?

I only asked this because i feel our company is too stringent in making converting their employees regular.

[the_BuGs]

Originally posted by Jonga
got a question...

our company tells us that we are self-employed, that we are 'consultants'. But we are still governed by their policies, pay withholding tax, to make it short....working like a contractual.


what are the differnce between self-employed and contractual? are they the same? comparable?

I only asked this because i feel our company is too stringent in making converting their employees regular.

Brad kasi ganito yan...
Kasi pag contractual ang ibibigay nila hindi sila pwede mag bigay ng long term.Sa Labor Code kaya kung gusto ng company mag contractual ng employee ang maximum months lang na ibibigay ng Company is 5 months. Kasi pag umabot ka ng Six Months kelangan i under probationary ka na then i-regular.Kaso maraming loop holes ang pagiging contractual para magkaroon ng mahabang term. Sasabihin nilang Project Based ka lang kaya mahaba ang term.Kung titingnan mo sa SPI Tech yung contractual nila eh is 3 months lang.Pag nagustuhan ka i-eextend lang nila then i-reregular ka na.Sa kaso dyan pinalalabas nila na Project Based yung contract mo.Kaya nagkakaroon ng extensions.Kaya gagawin na lang nila self employed ka.Para kahit habambuhay kang contractual hindi sila sabit sa law ng labor code. Kasi Project Based ka lang at consultants.kaya nung naupo na kasi yung "BIG BOSS" kelangan ma iregular yung mga contractual dyan na lalo na lumagpas ng 1 yr Dahil kelangan nilang sundin yung labor code EH ang kaso maraming tutol so imbes na i regular nagtayo na lang ng isang IT company yan para maiwasan ang pag reregular. At gagawin na lang nilang self emplyed para hindi hassle sa labor code.

[dissident]

hello, i come from an it company in makati. i'm on a project basis and i am what you call a "project employee" (actually, pinagandang term lang ito na contractual). i would like to ask a question about "incentive leaves". according to a friend, this is mandatory if you have been with the company for one year. The thing is , it's not stipuated in my contract. My question is, which has more bulk about me getting the incentive leave... the contract or the mandatory government policy. HELP!!!!!!!!!!

[Gabriela]

Originally posted by dissident
hello, i come from an it company in makati. i'm on a project basis and i am what you call a "project employee" (actually, pinagandang term lang ito na contractual). i would like to ask a question about "incentive leaves". according to a friend, this is mandatory if you have been with the company for one year. The thing is , it's not stipuated in my contract. My question is, which has more bulk about me getting the incentive leave... the contract or the mandatory government policy. HELP!!!!!!!!!!

Yes, all employees (project-based or regular) who have been with a company for at least one year are entitled to a 5-day service incentive leave. Government mandated ito and even if it's not stipulated in your contract, you will still be entitled to such leaves. Yung mga companies na nagbibigay ng 15 days VL/SL (or more) sa mga regular employees nila, kasama na dun yung mandated 5-day service incentive leave.

[dissident]

thanks for thjis one gabriela!!!! also, i have been with the company for 1 year and 7 months. Is there a law book about this para mapakita ko sa boss ko. I can't believe I'm getting cheated of my leaves!!!!!!!!!!

[eponine0907]

Originally posted by dissident
thanks for thjis one gabriela!!!! also, i have been with the company for 1 year and 7 months. Is there a law book about this para mapakita ko sa boss ko. I can't believe I'm getting cheated of my leaves!!!!!!!!!!

the labor code of the philippines, as amended. that can help. :)



:blossom:

[the_BuGs]

Kwestyon lang po mga bossing tanong lang... dudugtungan ko lang tanong ni JONGA.......

Tatanong ko lang kung tama ako

- Pag contractual ka sa isang company then binigyan ka ng 6 months contract. di ba dpaat automatic i regular ka dapat after six months?? di ba ang maximum na pagbibigay ng contract is Five months?? pag nag extend ka eh di ba dpat i regular ka na?
Sa mga Direct Hire lang to yung hindi galing sa agency.

- Pag Probationary ka ng six months tapos yung ika fifth month mo wala ka pang notice sa company kung i-re-regular ka o hinde.. then pumatak yung ika 7 month mo tapos sasabihin sa iyo na nde ka pa regular dahil wala ka pang notice so hindi mo pa makukuha yung benefits na para sa iyo.Di ba dapat pag lumagpas ng anim na buwan automatic regular ka na?? kahit walang notice di ba??

- Tsaka yung pagbibigay sa iyo ng Self EMployed Status ng isang company kumbaga consultants. Eto lang ba yung paraan ng mga company para makapagbigay sa iyo ng Long Term Contract para hinde sila ma force sa pag reregular ng tao??


eto lang po muna.. mga attorny

[Jonga]

That's exactly what i'm asking about!!!

pinahaba mo lang braaaaddd!

concern ka sa min no.....heheheehh

[council]

Originally posted by dissident
thanks for thjis one gabriela!!!! also, i have been with the company for 1 year and 7 months. Is there a law book about this para mapakita ko sa boss ko. I can't believe I'm getting cheated of my leaves!!!!!!!!!!

Article 95 of the Labor Code. Right to Service Incentive Leave. Paragraph (a) reads:
Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.

[the_BuGs]

Originally posted by Jonga
That's exactly what i'm asking about!!!

pinahaba mo lang braaaaddd!

concern ka sa min no.....heheheehh


brad kase yung tanong ko eh andun na yugn sagot tinanatong ko lang kung tama.Pero kung talagang me tanong kang mabigat pumunta ka sa Tatay ko sa Third FLoor Tanungin mo sya dating Officer ng Union yan ehehehehehhehehe

[council]

Originally posted by the_BuGs

- Pag contractual ka sa isang company then binigyan ka ng 6 months contract. di ba dpaat automatic i regular ka dapat after six months?? di ba ang maximum na pagbibigay ng contract is Five months?? pag nag extend ka eh di ba dpat i regular ka na?
Sa mga Direct Hire lang to yung hindi galing sa agency.


I cant seem to find anything about a six month limit in the labor code, or has it been amended? I'm basing things on Article 280 stating that "any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exist."



- Pag Probationary ka ng six months tapos yung ika fifth month mo wala ka pang notice sa company kung i-re-regular ka o hinde.. then pumatak yung ika 7 month mo tapos sasabihin sa iyo na nde ka pa regular dahil wala ka pang notice so hindi mo pa makukuha yung benefits na para sa iyo.Di ba dapat pag lumagpas ng anim na buwan automatic regular ka na?? kahit walang notice di ba??


Yes, six months and one day pa lang, automatic regular. Article 281 deals with probationary employment.

Probationary employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonalbe standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

[Jonga]

nobody else answered my question cept bugs?

does that mean you agree with him?

na ang contractual or project based ay d pedeng maging regular kahit na lagpas 6 mos. ka na nagtratrabaho sa comp.?

na dahil self employed ka, di ka probationary?

di nyo sinagot tanong ko about the difference between self employed and contractual/project based?

and if you are still called self employed/consultants to a company kahit governed ka parin ng policies nila as in like a normal employee.

[the_BuGs]

Originally posted by council


I cant seem to find anything about a six month limit in the labor code, or has it been amended? I'm basing things on Article 280 stating that "any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exist."




ACTUALLY NALAMAN KO LANG TONG PROCESS NA TO DAHIL ME ISA AKONG COMPANY NA PINASUKAN...PERO HINDE AKO CONTRACTUAL DUON.THEN NAPAPANSIN KO YUNG CONTRACTUAL NILA IS MAXIMUM OF FIVE MONTHS LANG THEN TINANONG KO KUNG BAKIT.SO SINAGOT SA AKIN MAXIMUM LANG NG FIVE MONTHS ANG CONTRACTUAL PAG "DIRECT HIRE" KASE PAG LUMAGPAS NG FIVE MONTHS YAN KELANGAN I REGULAR MO EH WALA PA DAW SILANG BUDGET NUON.PERO PAG GALING SA AGENCY YUNG EMPLEYADO OK LANG KAHIT MAHABANG CONTRACT DAHIL HINDI NA NILA PROBLEMA YUN DAHIL YUNG AGENCY ANG HUMAHAWAK SA KANILA.


KAYA ETO YUNG NAKITA KONG REASON KUNG BAKIT YUNG IBANG COMPANY NAG HI-HIRE NG "DIRECT HIRE" NA CONTRACT PERO PAGDATING SA CONTRACT PALALABASIN NA SELF EMPLOYED KA LANG SA KANILA... PARANG LUMALABAS KLIYENTE MO LANG SILA.
THEN 10% LANG NG TAXC ANG IBABAWAS SA IYO.SO KAYA NAMAMYAGPAG SILA SA MAHAHABANG KONTRATA DAHIL LUSOT SILA SA BATAS.DAHIL YUNG PIPIRMAHAN MONG KONTRATA EH ANG STATUS O "SELF EMPLOYED" SO IT MEANS HINDI KA PA RIN EMPLEYADO NILA

[Gabriela]

Originally posted by the_BuGs
Kwestyon lang po mga bossing tanong lang... dudugtungan ko lang tanong ni JONGA.......

Tatanong ko lang kung tama ako

- Pag contractual ka sa isang company then binigyan ka ng 6 months contract. di ba dpaat automatic i regular ka dapat after six months?? di ba ang maximum na pagbibigay ng contract is Five months?? pag nag extend ka eh di ba dpat i regular ka na?
Sa mga Direct Hire lang to yung hindi galing sa agency.

Technically, if you exceed the 6 months, you have to be regularized by the company even if you have a signed agreement that you are a contractual employee only. You should have been terminated during the 5th month in the first place kaso they were not able to do so. Sorry sila.


- Pag Probationary ka ng six months tapos yung ika fifth month mo wala ka pang notice sa company kung i-re-regular ka o hinde.. then pumatak yung ika 7 month mo tapos sasabihin sa iyo na nde ka pa regular dahil wala ka pang notice so hindi mo pa makukuha yung benefits na para sa iyo.Di ba dapat pag lumagpas ng anim na buwan automatic regular ka na?? kahit walang notice di ba??

My friend, basta lagpas ka ng six months, que may regularization papers or wala, regular ka na. You have the right to demand your papers. Benefits and salary increments are automatically adjusted on the day that you were supposed to be regularized. Loko yang company nyo ah! Nag-iinit ulo ko. :mad:

[Gabriela]

Yung tungkol sa "self-employed" ire-research ko muna. Ngayon lang ako nakarinig ng ganito eh. Ba't ba naman kasi kayo pumipirma ng mga ganitong klaseng kontrata eh. :(

[the_BuGs]

Originally posted by Gabriela
Yung tungkol sa "self-employed" ire-research ko muna. Ngayon lang ako nakarinig ng ganito eh. Ba't ba naman kasi kayo pumipirma ng mga ganitong klaseng kontrata eh. :(


ma'am ala na ako sa PInas eh.. sinasagot ko lang din po yung mga tanong nila... at kaya rin po ako nagtatanong sa inyo para ma justify ko na tama rin po ako... dumaan din po ako sa contractual po maam at dumaan din po ako sa "SELF EMPLOYED" kaya medyo kabisado ko ng kaunti pasikot sikot po maam.

[the_BuGs]

Mga atorni andto po ba kayo??