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by Atty. Gabriel Ablola 🇵🇭

Tag: Security of Tenure

  • Can I Be Replaced in My Government Position After a Change in Administration?

    Dear Atty. Gab,

    Musta Atty! I hope this letter finds you well. My name is Ricardo Cruz, and I’m writing to you because I find myself in a very confusing and distressing situation regarding my employment in a government agency here in Quezon City. About two years ago, during the previous administration, I was appointed as Department Manager III in the Laguna Lake Development Authority (LLDA). My appointment paper looked standard, and it didn’t state that my term was temporary or co-terminus. I worked diligently and received positive evaluations.

    However, after the recent change in administration, a memorandum circular was issued stating that officials without certain eligibilities occupying high-level positions would be considered separated unless reappointed. Shortly after, the new LLDA head designated someone else as Officer-in-Charge for my position, and I was effectively removed. They stopped paying my salary and told me my appointment was considered ended because I don’t possess the Career Executive Service (CES) eligibility, even though I wasn’t sure if my position was even classified as CES. I tried asking the Civil Service Commission about my position’s classification, but haven’t received a definitive answer yet.

    I feel this is unfair. I thought my appointment was permanent and that I had security of tenure under the Civil Service rules. Does the fact that I lack CES eligibility automatically mean my appointment was temporary, even if the appointment paper didn’t say so? Can they just replace me like this because of a change in administration? I’m confused about my rights and what steps I can take. Any guidance you could offer would be greatly appreciated.

    Respectfully yours,
    Ricardo Cruz

    Dear Ricardo,

    Thank you for reaching out and sharing your situation. It’s completely understandable why you feel confused and distressed about the sudden change in your employment status at the LLDA. Losing a position you believed was secure, especially after dedicated service, is undoubtedly difficult.

    The core issue here revolves around the nature of your appointment (whether it was permanent or temporary) and its connection to the requirements of the position you held, particularly the Career Executive Service (CES) eligibility. Generally, in the Philippine Civil Service, permanent appointments conferring security of tenure require meeting all the qualifications for the position, including the necessary eligibility. Appointments to CES positions without the required CES eligibility are typically considered temporary, even if not explicitly stated in the appointment paper.

    Understanding Appointments and Security of Tenure in Government Service

    The Philippine Civil Service framework, primarily governed by Executive Order No. 292 (The Revised Administrative Code of 1987), classifies positions into Career Service and Non-Career Service. A key distinction lies in tenure.

    Career service is characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. (E.O. 292, Book V, Title I, Subtitle A, Chapter 2, Sec. 7)

    The Non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. (E.O. 292, Book V, Title I, Subtitle A, Chapter 2, Sec. 9)

    Based on the principle of security of tenure usually associated with managerial roles in agencies like LLDA, your position likely falls under the Career Service. However, within the Career Service, there’s a specific category known as the Career Executive Service (CES). The CES covers high-level managerial positions.

    Determining if a position falls under the CES involves specific criteria. While certain positions like Undersecretary and Assistant Secretary are explicitly listed, others can be included if they meet specific standards set by the Career Executive Service Board (CESB).

    Unless provided otherwise, all other managerial or executive positions in the government, including government-owned or controlled corporations with original charters are embraced within the CES provided that they meet the following criteria: i.) The position is a career position; ii.) The position is above division chief level; and, iii.) The duties and responsibilities of the position require performance of executive and managerial functions. (Based on principles outlined in CESB Resolution No. 799)

    If your Department Manager III position meets these criteria (being a career post, above division chief level, and involving executive/managerial functions), it could be classified as a CES position, even if not explicitly listed in the law. The crucial point then becomes eligibility. For permanent appointment to a CES position, one generally needs CES eligibility, obtained by passing the CES examinations.

    Philippine jurisprudence has consistently held that appointments to CES positions without the required CES eligibility are considered temporary in nature, regardless of how the appointment paper is designated.

    Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon passing the CES examinations administered by the CES Board… [P]ossession of the required CES eligibility is that which will make an appointment in the career executive service a permanent one. … [I]n the absence of appropriate eligibles and when there is necessity in the interest of public service to fill vacancies… the appointment is at best merely temporary… This rule… is invariable even though the given appointment may have been designated as permanent by the appointing authority. (Principles derived from jurisprudence like Amores v. CSC)

    This means that if your position is indeed a CES position and you lack the required CES eligibility, your appointment, despite not being explicitly labelled ‘temporary’, was legally considered temporary. Temporary appointments do not carry security of tenure in the same way permanent appointments do. They can be terminated at the pleasure of the appointing authority, or their term may end with the term of the appointing authority (co-terminus).

    Furthermore, even if there was ambiguity about the classification of your specific position, the CESB has clarified the status of appointments to positions requiring Presidential appointment that haven’t been formally classified.

    All appointments to positions which have not been previously classified as part of the CES would be deemed co-terminus with the appointing authority. (Principle from CESB Resolution No. 945)

    Since you were appointed during the previous administration, and assuming your position requires presidential appointment (directly or indirectly) or falls under the criteria for CES without prior classification, your tenure could be deemed co-terminus with the previous President. Therefore, the change in administration could legally lead to the end of your term.

    Practical Advice for Your Situation

    • Verify Position Classification: Persist in getting a definitive classification of the Department Manager III position at LLDA from the Civil Service Commission (CSC) or the Career Executive Service Board (CESB). This is crucial.
    • Review Appointment Requirements: Check the official Qualification Standards (QS) for your specific position. Does it explicitly require CES eligibility for permanent status?
    • Nature of Appointment: Understand that even without the word ‘temporary’ on your appointment paper, lacking the required eligibility (like CES eligibility for a CES position) generally makes the appointment temporary under civil service law and jurisprudence.
    • Memorandum Circulars: Review the specific OP Memorandum Circular cited (like OP MC Nos. 1 and 2, S. 2010 mentioned in the reference case) to see if its terms directly apply to your situation (non-CESO in a CES position).
    • Security of Tenure Limitations: Recognize that security of tenure primarily protects permanent appointees who meet all qualifications, including eligibility. Temporary appointees generally do not have this protection.
    • Co-Terminus Appointments: Be aware that appointments, especially to higher positions lacking required eligibility or classification, can sometimes be considered co-terminus with the appointing authority.
    • Legal Options (Quo Warranto): While a quo warranto petition challenges someone’s right to hold an office, you would need to prove your own clear and undisputed right to the position to succeed. If your appointment was indeed temporary due to lack of eligibility, establishing such a right would be difficult.
    • Consult a Specialist: Given the complexities, consult a lawyer specializing in Philippine Civil Service Law or Administrative Law for advice tailored precisely to your documents and the specific rules governing the LLDA.

    I understand this might not be the news you were hoping for, Ricardo. The rules surrounding appointments, eligibility, and security of tenure in the Philippine government, especially concerning CES positions, are quite specific. Your situation highlights the critical importance of eligibility for securing permanent status in higher government posts.

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.

  • Can I Be Marked AWOL If I Couldn’t Report to My Designated Office Due to Workplace Conflict?

    Dear Atty. Gab,

    Musta Atty! I hope you can shed some light on my situation. My name is Gregorio Panganiban, and I’m a regular employee at the municipal hall in our town, San Isidro, Batangas. For about three months now, there’s been serious confusion about who is really in charge. Our elected mayor, Mayor Ramirez, faced an issue, and the Vice Mayor, Mr. De Leon, claimed he was the acting mayor based on some directive. Mayor Ramirez, however, refused to step down completely and continued issuing orders from a temporary office he set up in a nearby building.

    During this period, I received conflicting memos. One from Mayor Ramirez told us to continue reporting to the municipal hall, while another from Acting Mayor De Leon instructed everyone to report to his temporary office. Honestly, Atty., it was chaotic. Most of us senior staff stayed at the municipal hall, believing Mayor Ramirez was still the authority. However, last week, I received a notice from Acting Mayor De Leon’s office stating I was being dropped from the rolls for being Absent Without Official Leave (AWOL) for over 30 days because I didn’t report to his designated temporary office.

    I never intended to be absent, Atty. I reported daily to the municipal hall, my official place of work, following Mayor Ramirez’s directive. We even have logbooks and witnesses there. But because I didn’t follow Acting Mayor De Leon’s memo to report elsewhere, I’m now facing removal from service. Is this fair? Can they declare me AWOL even if I was reporting to the official workplace, just not the one specified by the acting mayor amidst the confusion? I’m worried about losing my job due to this political mess. What are my rights?

    Hoping for your guidance,

    Gregorio Panganiban

    Dear Gregorio,

    Thank you for reaching out. I understand your distress and confusion regarding the AWOL notice you received amidst the leadership uncertainty at the San Isidro municipal hall. It’s indeed a challenging situation when employees are caught between conflicting directives from superiors.

    Generally, being dropped from the rolls due to AWOL requires continuous absence from one’s post for at least 30 working days without approved leave. However, the circumstances you described – conflicting orders during a leadership dispute and your continued reporting to the official municipal hall – raise questions about whether your absence from the acting mayor’s designated temporary office constitutes AWOL under Civil Service rules, especially if you had justifiable reasons for your actions and did not intend to abandon your post.

    Navigating Workplace Rules Amidst Leadership Disputes

    Your situation touches upon fundamental principles of security of tenure for government employees and the requirements for separating an employee due to Absence Without Official Leave (AWOL). The Philippine Constitution protects the right of government employees to security of tenure, meaning they cannot be dismissed except for cause provided by law and after due process. Being dropped from the rolls due to AWOL is one such cause, but it is not automatic and requires specific conditions to be met.

    Under Civil Service rules, an employee is generally considered AWOL and may be dropped from the rolls if they are continuously absent without approved leave (unauthorized leave) for at least thirty (30) working days. The rule contemplates an employee’s clear intention to sever the employment relationship or abandon their post without justifiable reason.

    “An official or an employee who is continuously absent without approved leave for at least thirty (30) working days shall be considered on absence without official leave (AWOL) and shall be separated from the service or dropped from the rolls without prior notice. He shall, however, be informed, at his address appearing on his 201 file or at his last known written address, of his separation from the service, not later than five (5) days from its effectivity…” (Paraphrased principle based on CSC Rules, similar to Sec. 63, CSC MC No. 14, s. 1999, subject to updates like the 2017 RACCS)

    This rule implies that the absence must be continuous and unauthorized. Your case presents a unique challenge because you were not technically ‘absent’ from work altogether; rather, you were reporting to a location different from the one mandated by one faction in the leadership dispute, arguably following instructions from another perceived authority. The key question is whether your failure to report to the acting mayor’s temporary office, under the specific confusing circumstances, constitutes being ‘absent without approved leave’ or if there was a justifiable reason for your actions.

    It is crucial to recognize that administrative proceedings, such as those handled by the Civil Service Commission (CSC), are not always bound by the strict technical rules of procedure applied in courts. The emphasis is often on substantial justice rather than rigid adherence to technicalities.

    “Administrative investigations shall be conducted without necessarily adhering strictly to the technical rules of procedure and evidence applicable to judicial proceedings.” (Principle from Sec. 3, Rule 1, Uniform Rules on Administrative Cases in the Civil Service, now reflected in the 2017 Rules on Administrative Cases in the Civil Service – RACCS)

    This principle allows administrative bodies like the CSC to consider the unique context of a case. The political uncertainty and conflicting directives you experienced could be considered peculiar circumstances. If it can be shown that you were caught in a ‘cross-fire’ between political rivals and lacked clear, undisputed guidance on where to report, it may negate the finding of AWOL, as your actions might not demonstrate an intent to abandon your duties. The CSC and courts have, in some instances, acknowledged that employees placed in such confusing situations, where authorities issue conflicting directives, might not be deemed to have abandoned their posts if they continued reporting for duty, albeit in a location contested by one faction.

    Furthermore, factual determinations by administrative agencies like the CSC, when supported by evidence, are generally accorded respect, especially if affirmed by higher courts. This means gathering strong evidence is vital for your case.

    Factual findings of quasi-judicial bodies like the CSC, when adopted and affirmed by the Court of Appeals and if supported by substantial evidence, are accorded respect and even finality by the courts. (General legal principle restated)

    Therefore, proving that you consistently reported for duty at the municipal hall, believed you were following legitimate instructions, and never intended to abandon your post is crucial. Evidence like logbooks, affidavits from colleagues or supervisors present at the municipal hall, and copies of the conflicting memoranda will be vital in contesting the AWOL finding.

    Practical Advice for Your Situation

    • Gather All Evidence: Compile copies of both conflicting memoranda, your Daily Time Records (DTRs) or logbook entries from the municipal hall, affidavits from colleagues or immediate supervisors confirming your presence, and any other proof showing you reported for work during the period in question.
    • Document Everything: Write a detailed timeline of events, noting when you received conflicting instructions, where you reported, and any attempts made to seek clarification.
    • Formal Written Explanation: If you haven’t already, submit a formal written explanation to the office that issued the AWOL notice (Acting Mayor De Leon’s office and/or the HR department), detailing the circumstances, stating you were not AWOL, and attaching your evidence. Keep a received copy.
    • Check CSC Rules on Appeal: Familiarize yourself with the specific procedure and deadlines for appealing a decision of dropping from the rolls under the latest CSC rules (currently the 2017 Rules on Administrative Cases in the Civil Service – RACCS). There are strict timelines to follow.
    • Consult Your HR Department: Request clarification from your official HR department regarding your status and the proper procedure given the leadership dispute.
    • Seek Union or Legal Assistance: If you are part of an employees’ union, seek their assistance. Consider obtaining formal legal counsel specializing in Civil Service law to help you navigate the appeal process effectively.
    • File an Appeal if Necessary: If the decision to drop you from the rolls is finalized despite your explanation, file a timely appeal with the Civil Service Commission Regional Office having jurisdiction over your area.
    • Highlight Lack of Intent: Emphasize in all your communications and potential appeals that you never intended to abandon your post and your actions were due to the confusing and conflicting directives during the leadership uncertainty.

    Your situation requires careful handling, focusing on demonstrating that you did not abandon your post and acted reasonably under confusing circumstances. Protecting your right to security of tenure is paramount.

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.

  • My Government Office Reorganized – Was My Transfer a Demotion and Can I Be Fired for Performance?

    Dear Atty. Gab,

    Musta Atty! I hope you can enlighten me on my situation. I’ve been working as a Department Manager III (SG-20) in a government-owned corporation, let’s call it ‘PhilDev Corp’, here in Quezon City for about 15 years. My appointment is permanent.

    Recently, our Board of Directors approved a restructuring plan, citing the need to streamline operations. My department, the Special Projects Unit, which handled major initiatives and had about 20 staff under me, was dissolved. I was then transferred to head a newly created section, the Records Monitoring Team, which only has 5 staff and seems to handle mostly administrative tracking.

    While I retained my position title of Department Manager III and my salary scale (SG-20), I feel like this is a demotion in substance. My responsibilities are significantly less critical, and my authority has clearly diminished. I used to report directly to the Vice President, but now I report to another Department Manager. Is this allowed? I thought my security of tenure protects me from this?

    To make things worse, my new supervisor recently gave me a performance rating of ‘Needs Improvement’ for the last semester, which surprised me as I’ve always had ‘Very Satisfactory’ ratings before the reorganization. He mentioned vague points about adapting to the new structure. I’m worried this is the start of building a case to remove me. What are the rules regarding performance ratings and potential dismissal in government service? Can they just remove me based on one or two low ratings after such a transfer? I feel unfairly treated and targeted after the reorganization. Hope you can provide some guidance.

    Respectfully,
    Gregorio Panganiban

    Dear Gregorio,

    Thank you for reaching out. It’s understandable why you feel concerned about the changes following the reorganization at PhilDev Corp and the recent performance rating. Navigating structural changes within government service can indeed be complex, especially when it impacts long-held positions and responsibilities.

    In essence, government agencies and corporations generally have the authority to reorganize, provided it’s done legally and in good faith, often for reasons like economy or efficiency. While you have security of tenure, this doesn’t mean you’re entitled to perpetually hold the exact same set of functions. A transfer or reassignment during a valid reorganization is generally permissible if it doesn’t involve a reduction in rank or salary. Regarding performance ratings, the Civil Service Commission (CSC) has specific rules that must be strictly followed before an employee can be dropped from the rolls due to unsatisfactory or poor performance, ensuring due process is observed.

    Navigating Government Reorganizations and Your Rights

    Understanding your rights during and after a government reorganization involves looking at several key legal principles, primarily concerning the validity of the reorganization itself, your security of tenure, and the rules surrounding performance evaluation and potential separation from service.

    First, the authority of a government-owned corporation’s Board of Directors to reorganize often stems directly from its charter or specific laws. For instance, enabling laws might grant the Board the power to determine the agency’s structure and staffing pattern. When exercised pursuant to such legal authority, a reorganization is generally considered valid. The law may explicitly grant this power, as seen in enabling acts for various government corporations.

    “The Board of Directors shall provide for an organizational structure and staffing pattern for officers and employees… and upon recommendation of its President, appoint and fix their remuneration, emoluments and fringe benefits: Provided, That the Board shall have exclusive and final authority to appoint, promote, transfer, assign and re-assign personnel…, any provision of existing law to the contrary notwithstanding.” (Principle based on Section 7, R.A. No. 8494 discussed in the reference case, illustrating statutory authority for reorganization)

    This means that agencies can change their structure, potentially abolishing units and creating new ones. Your security of tenure, a constitutional guarantee for government employees, protects you from illegal dismissal or unjustified removal. However, it does not guarantee perpetual assignment to a specific department or set of duties. As long as a reorganization is valid (done legally, in good faith, and often aimed at efficiency or economy) and you are transferred to a position of comparable rank and salary, your security of tenure is generally considered respected. A reassignment is often viewed as an employer’s prerogative, provided it’s not done arbitrarily or in bad faith.

    The crucial point regarding your feeling of being demoted relates to whether there was a reduction in rank, status, or salary. You mentioned retaining your title (Department Manager III) and salary grade (SG-20). Jurisprudence generally holds that if rank and salary are maintained, a change in duties or assignment to a smaller unit due to a valid reorganization does not automatically constitute a demotion. While your scope of authority and the prestige associated with your previous role might have changed, the law primarily looks at rank and salary to determine if a demotion occurred in the context of a reorganization.

    Regarding your performance rating and fear of dismissal, the Civil Service rules provide specific procedures. An employee cannot typically be dismissed outright for a single ‘Needs Improvement’ rating. The rules on dropping from the rolls due to performance usually involve consecutive unsatisfactory ratings or a ‘Poor’ rating, coupled with mandatory notice requirements.

    “An official or employee, who for one evaluation period is rated poor in performance, may be dropped from the rolls after due notice. Notice shall mean that the officer or employee is informed in writing of the status of his performance not later than the 4th month of that rating period with sufficient warning that failure to improve his performance within the remaining period of the semester shall warrant his separation from the service. Such notice shall also contain sufficient information which shall enable the employee to prepare an explanation.” (Section 2.2(b), Rule XII, Revised Omnibus Rules on Appointments and Other Personnel Actions, CSC MC No. 40, s. 1998)

    Similarly, for unsatisfactory ratings:

    “An official or employee who is given two (2) consecutive unsatisfactory ratings may be dropped from the rolls after due notice. Notice shall mean that the officer or employee concerned is informed in writing of his unsatisfactory performance for a semester and is sufficiently warned that a succeeding unsatisfactory performance shall warrant his separation from the service. Such notice shall be given not later than 30 days from the end of the semester and shall contain sufficient information which shall enable the employee to prepare an explanation.” (Section 2.2(a), Rule XII, Revised Omnibus Rules on Appointments and Other Personnel Actions, CSC MC No. 40, s. 1998)

    These rules emphasize due process. You must be formally notified of your performance status, given reasons, warned of potential separation if performance doesn’t improve within a specified period, and allowed an opportunity to explain or improve. A rating of ‘Needs Improvement’ is generally not equivalent to ‘Unsatisfactory’ or ‘Poor’ under CSC rules, although agency-specific performance management systems might have their nuances. It’s crucial to understand your agency’s specific Performance Management System and how it aligns with CSC rules. The requirement of good faith also applies; performance evaluation should not be used as a tool for harassment or as a pretext for removing an employee due to the reorganization.

    Practical Advice for Your Situation

    • Review Reorganization Documents: Request copies of the Board Resolution approving the reorganization and the approved new organizational structure and staffing pattern. Understanding the official rationale and scope can provide context.
    • Check Your Appointment Papers: Confirm the specifics of your permanent appointment. Was it to the position of ‘Department Manager III’ generally, or specifically to the ‘Special Projects Unit’? This can be relevant, though often appointments are to the position title.
    • Understand Your Agency’s Performance System: Familiarize yourself with PhilDev Corp’s specific Performance Management System approved by the CSC. Know the standards, rating scale (what constitutes ‘Unsatisfactory’ or ‘Poor’), and the process for appealing ratings.
    • Document Everything: Keep records of your previous performance ratings, the notice of your transfer, your new duties, the recent performance evaluation, and any communication regarding your performance or the reorganization.
    • Formally Appeal the Rating: If you disagree with the ‘Needs Improvement’ rating, utilize the agency’s grievance machinery or the appeal process outlined in its performance management system. Submit a formal, written appeal stating your reasons and providing supporting evidence if possible.
    • Seek Clarification on Expectations: Have a formal discussion with your supervisor about the specific areas needing improvement and the performance expectations for your new role. Document this discussion.
    • Consult Your HR Department or Union: Discuss your concerns about the transfer and the performance rating with your HR department or employee association/union, if applicable. They may provide internal guidance or assistance.
    • Monitor Compliance with CSC Rules: Ensure that any action related to your performance strictly follows the due process requirements outlined in the CSC rules (MC No. 40, s. 1998 and subsequent related issuances).

    Gregorio, while your feelings of being sidelined are valid, the legality of your transfer hinges on whether the reorganization was proper and if your rank and salary were maintained. The performance rating issue requires careful monitoring and adherence to due process by your agency. Be proactive in understanding the rules and asserting your rights through the proper channels.

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.

  • Can a Water District General Manager Work Past the Retirement Age of 65?

    Dear Atty. Gab,

    Musta Atty! I hope this message finds you well. My name is Ricardo Cruz, and I’m writing on behalf of my father, Mr. Antonio Cruz. He has served as the General Manager (GM) for our local water district, the Marikina Valley Water District, for almost 15 years now. He just turned 65 last month, which I understand is the compulsory retirement age for government employees.

    The thing is, the Board of Directors (BOD) really values my father’s work. They passed a resolution expressing their desire for him to continue serving as GM because of his excellent track record and the trust they have in him. They believe his leadership is crucial for ongoing projects. However, some members of the community and even some employees are questioning whether he can legally stay on. They mention a relatively recent law that supposedly gave GMs more job security, making the position seem like a regular career role that strictly follows the retirement rule.

    We’re quite confused. Is my father’s position considered ‘primarily confidential,’ allowing him to work beyond 65 based on the BOD’s trust, or is it now a standard ‘career’ position where retirement at 65 is mandatory despite the BOD’s wishes? His original appointment many years ago mentioned ‘coterminous’ status, but we’re unsure how the newer law affects that. We don’t want him to face legal issues or be forced out when the appointing authority wants him to stay. Can you shed some light on the nature of the GM position in water districts regarding retirement?

    Thank you for your time and guidance, Atty.

    Respectfully,
    Ricardo Cruz

    Dear Ricardo,

    Thank you for reaching out and sharing your concerns about your father’s situation. It’s understandable to feel confused given the nuances of civil service classifications and recent legislative changes affecting local water districts.

    In essence, Philippine jurisprudence clarifies that the position of General Manager (GM) in a local water district, like your father’s, is generally considered primarily confidential. This classification stems from the high degree of trust and confidence inherent in the relationship between the GM and the appointing Board of Directors (BOD). While a subsequent law did grant GMs security of tenure (meaning they cannot be removed without cause and due process), it did not automatically change the fundamental nature of the position from non-career/confidential to career service. Therefore, appointment to, or continuation in, such a position beyond the compulsory retirement age of 65 is generally permissible, provided it’s based on the BOD’s trust and confidence.

    Navigating Trust and Tenure: The Unique Status of Water District General Managers

    Understanding your father’s situation requires looking at how Philippine law classifies government positions and the specific nature of the GM role in a water district. The Civil Service is broadly divided into Career Service and Non-Career Service. Career positions typically require competitive examinations for entry, offer opportunities for advancement, and guarantee security of tenure. Non-career positions, on the other hand, often involve different entry requirements and have limited tenure, such as being coterminous with the appointing authority or based on their pleasure.

    A key type of non-career position is the primarily confidential position. The determination of whether a position is primarily confidential hinges not just on its title but on the nature of the duties and the relationship between the appointee and the appointing authority. The defining characteristic is the element of trust.

    “Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of [discussion, delegation and reporting] without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.”

    This principle highlights the close working relationship required. For a Water District GM, the role involves executing the policies set by the BOD, managing daily operations, handling finances, and appointing personnel (with BOD approval for supervisory levels). This requires a significant level of trust and direct accountability to the BOD, fitting the description of a primarily confidential role.

    Historically, under Presidential Decree No. 198 (The Provincial Water Utilities Act of 1973), the GM explicitly served “at the pleasure of the board.” This clearly placed the position within the non-career, confidential category. Republic Act No. 9286 later amended this, removing the “at the pleasure” clause and stating that the GM “shall not be removed from office, except for cause and after due process.”

    This amendment is significant because it grants security of tenure. However, it does not automatically convert the position into a career service one. The security of tenure simply means the BOD cannot arbitrarily remove the GM; there must be a valid reason (cause) and the GM must be given a chance to be heard (due process). The underlying nature of the position, characterized by the high degree of trust and confidence required by the BOD, remains.

    “It is established that no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law. However, this admits of exceptions for it is likewise settled that the right to security of tenure is not available to those employees whose appointments are contractual and coterminous in nature.”

    Even with the requirement of cause and due process for removal, loss of confidence can still be considered a valid cause for terminating someone in a primarily confidential position. This isn’t arbitrary dismissal; it means the trust essential to the role has been broken, but its existence and the reasons for its loss must still be established following due process.

    “The phrase ‘cause provided by law,’ however, includes ‘loss of confidence.’ It is an established rule that the tenure of those holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures.”

    Crucially, Civil Service rules allow for appointments beyond the compulsory retirement age for certain positions. Specifically applicable here is the rule regarding coterminous and primarily confidential roles:

    “A person who has already reached the compulsory retirement age of 65 can still be appointed to a coterminous/primarily confidential position in the government. A person appointed to a coterminous/primarily confidential position who reaches the age of 65 years is considered automatically extended in the service until the expiry date of his/her appointment or until his/her services are earlier terminated.”
    (Paraphrased from CSC Resolution No. 011624)

    Therefore, because the GM position in a water district retains its primarily confidential nature (despite the added security of tenure regarding removal), your father’s continued service past the age of 65 is legally permissible, especially since the BOD, the appointing authority, explicitly wishes him to continue based on their trust and confidence. His appointment would likely continue under a coterminous status, linked to the BOD’s trust or the duration they specify.

    Practical Advice for Your Father’s Situation

    • Review Appointment Papers: Check the specific terms of your father’s most recent appointment or the BOD resolution extending his service. Ensure it reflects the coterminous or primarily confidential nature intended by the BOD.
    • Formal BOD Resolution: Make sure the BOD resolution clearly states their continued trust and confidence in your father and their decision to retain him as GM despite reaching 65, citing the primarily confidential nature of the role.
    • Understand Tenure Basis: Your father and the BOD should understand that his tenure, while protected by due process requirements for removal, ultimately rests on the BOD’s sustained trust and confidence.
    • Due Process is Key: Remind the BOD that should circumstances change, any move to terminate your father must strictly adhere to ’cause’ and ‘due process’ requirements mandated by R.A. 9286. Loss of confidence, if invoked, must be substantiated.
    • Maintain Performance: Encourage your father to continue performing his duties effectively and maintaining open communication with the BOD to reinforce their trust.
    • Documentation: Keep copies of the BOD resolutions, performance appraisals, and any commendations demonstrating his satisfactory service and the BOD’s confidence.
    • Address Concerns Proactively: If questions persist, the BOD or your father might consider formally communicating the legal basis for his continued service, referencing the primarily confidential nature of the position and relevant CSC rules allowing service beyond 65 for such roles.

    Based on prevailing jurisprudence, the fact that the GM position in a water district is primarily confidential allows the BOD to retain your father beyond the compulsory retirement age, provided they maintain their trust and confidence in him. The security of tenure introduced by law simply ensures he cannot be removed arbitrarily without just cause and due process.

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.

  • Was I Fired or Did I Abandon My Job After My Pregnancy Leave?

    Dear Atty. Gab,

    Musta Atty! I’m Katrina Agustin, and I’m writing to you because I’m incredibly confused and stressed about my recent job situation. I worked as an administrative assistant for a small marketing firm in Cebu City for almost two years. Earlier this year, I became pregnant and experienced some complications, leading to frequent absences and tardiness in March and April, which I always informed my supervisor about.

    My supervisor, Ms. Santos, seemed understanding at first and even suggested I take a vacation leave in early May, which I did for two weeks with proper approval. I returned on May 16th and worked diligently for the next few days. However, on May 21st, Ms. Santos called me into her office and told me, quite abruptly, that maybe it was best if I didn’t report to work anymore starting that day. There was no formal letter, no explanation of cause, just a verbal instruction.

    Shocked and unsure, I didn’t go back the next day. I tried calling the office near the end of May to clarify my status, and the HR assistant informed me that my position was no longer available and they considered me resigned. I immediately filed a complaint for illegal dismissal with the DOLE. In the process, because I felt so betrayed and uncomfortable returning, I mentioned I would prefer separation pay instead of reinstatement.

    Now, the company is claiming I wasn’t dismissed but that I abandoned my job. They are citing my pregnancy-related absences and the fact that I asked for separation pay as proof of abandonment. Was I illegally dismissed, or did I really abandon my job just because I was told not to come back and later asked for separation pay? I never intended to leave, but they told me not to report anymore. Please help me understand my rights.

    Sincerely,
    Katrina Agustin

    Dear Katrina,

    Thank you for reaching out and sharing your difficult situation. It’s completely understandable why you feel confused and stressed. Losing a job, especially under such circumstances and after pregnancy-related challenges, is incredibly tough.

    Based on your account, the core issue revolves around whether your employment ended due to illegal dismissal by your employer or abandonment on your part. In Philippine labor law, the distinction is crucial. Generally, the employer bears the burden of proving that a dismissal was for a just or authorized cause and that due process was observed. Mere absence, particularly when justified like yours due to pregnancy complications and approved leave, is not typically considered abandonment. Let’s delve deeper into the relevant principles.

    Understanding Dismissal vs. Abandonment in Philippine Labor Law

    Your situation highlights a common point of conflict in employment disputes: the difference between being dismissed and abandoning one’s job. The Philippine Constitution guarantees security of tenure, meaning an employee cannot be dismissed without a valid reason and proper procedure. When an employer claims an employee abandoned their job, the employer must prove this allegation; the burden does not fall on you to prove you didn’t abandon it.

    Abandonment is not merely being absent; it requires two specific elements that the employer must demonstrate conclusively. As jurisprudence clarifies:

    For abandonment to exist, two factors must be present: (1) the failure to report for work or absence without a valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor being manifested by some overt acts.

    Your absences related to pregnancy complications, especially those leading to an approved vacation leave, would likely be considered justified reasons. Therefore, the first element of abandonment might not even be met. More importantly, the second element – a clear intention to sever the employer-employee relationship – is critical. This intention must be deliberate and demonstrated through concrete actions by the employee. Simply being absent is not enough proof of this intention.

    The employer has the responsibility to show you deliberately and unjustifiably refused to resume your employment without any intention of returning. Your actions, such as returning to work immediately after your leave and promptly filing an illegal dismissal case after being told not to report, strongly contradict any intention to abandon your job. Filing an illegal dismissal case is, in fact, often seen as evidence against abandonment because it shows your desire to contest the termination and assert your right to employment or its benefits.

    The mere absence of an employee is not sufficient to constitute abandonment. As an employer, [the company] has the burden of proof to show the deliberate and unjustified refusal of the employee to resume the latter’s employment without any intention of returning.

    Furthermore, your employer’s alleged verbal instruction for you not to report to work anymore is a significant factor. If proven, this constitutes dismissal. While verbal dismissals are harder to prove than written ones, the employer’s subsequent actions (like telling you your job was gone) and their potential failure to formally deny your claim that you were told not to return can be relevant. Silence or failure to contest such a direct accusation when it’s natural to do so can sometimes be interpreted negatively against the party who remained silent.

    An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (Rules of Court, Rule 130, Sec. 32)

    Regarding your request for separation pay instead of reinstatement, this does not automatically equate to abandonment. An illegally dismissed employee generally has the right to choose between reinstatement (getting the job back) with back wages, or separation pay (especially if reinstatement is no longer viable due to strained relations or other specific circumstances) plus back wages. Opting for separation pay is exercising a legal remedy available to an employee who believes they were unlawfully dismissed; it doesn’t retroactively validate the employer’s claim of abandonment.

    Abandonment is a matter of intention and cannot lightly be inferred or legally presumed from certain equivocal acts. For abandonment to be appreciated, there must be a “clear, willful, deliberate, and unjustified refusal of the employee to resume employment.”

    In summary, based on your narration, it appears you have a strong argument for illegal dismissal rather than abandonment. The burden is on your employer to prove otherwise with clear, positive evidence of both your unjustified absence and your unmistakable intent to sever employment ties.

    Practical Advice for Your Situation

    • Gather All Documentation: Collect copies of your employment contract, payslips, leave approvals, any medical certificates related to your pregnancy complications, and records of communication (emails, messages) with your supervisor or HR about your absences and return to work.
    • Document the Timeline: Write down a clear timeline of events, including the date you were verbally told not to return, dates you attempted to contact the office, and the date you filed the DOLE complaint.
    • Witnesses: If any colleagues witnessed your return to work after leave or heard about the instruction for you not to report, their potential testimony could be helpful, though often colleagues are hesitant to get involved.
    • Focus on Lack of Due Process: Emphasize that you were not given any written notice explaining the grounds for dismissal, nor were you given an opportunity to explain your side before the termination became effective – core requirements of procedural due process in dismissals.
    • Maintain Your Stance: Consistently assert that you did not abandon your job but were prevented from returning by your supervisor’s instruction.
    • Pregnancy-Related Absences: Point out that absences due to pregnancy complications are generally protected and cannot be used as a basis for disciplinary action or claims of abandonment, especially when communicated to the employer.
    • Separation Pay is a Remedy: Clarify that your request for separation pay was made after what you perceived as an unjust dismissal, as a legal alternative to reinstatement, not as an indication of prior intent to leave.
    • Consult a Labor Lawyer: Since you have already filed a complaint, it is highly advisable to consult with a lawyer specializing in labor law who can represent you formally and navigate the proceedings before the Labor Arbiter.

    Dealing with this situation while navigating pregnancy and potential job loss is undoubtedly challenging. Remember that Philippine labor laws are designed to protect employees from arbitrary dismissal and place a significant burden on employers to justify termination. Your actions seem consistent with someone who was dismissed, not someone who abandoned their job.

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.

  • Can my employer refuse reinstatement and backwages if I wasn’t charged in the labor dispute?

    Dear Atty. Gab,

    Musta Atty! I’m Ricardo Cruz, and I’ve been working at Makina Works Inc. in Valenzuela City for about 8 years now. Recently, there was a big disagreement between our newly formed union and management, which led to a short strike a couple of months ago. While I am a member of the union, I was actually on approved sick leave for dengue fever during the entire week the strike happened. I have medical certificates and company leave forms to prove this.

    When I recovered and tried to report back to work, security blocked me at the gate. Management told me that because of the “labor trouble,” they were sorting things out and couldn’t let me back in yet. Later, I found out they filed a case with the NLRC against several union officers and members, accusing them of conducting an illegal strike. My name, however, was NOT included in their complaint list. I even got a copy of their complaint to confirm this.

    It’s been two months now, and they still won’t let me work. They haven’t issued any termination letter or suspension notice against me specifically. When I follow up, they just say things are “complicated” because of the ongoing case against the others. I haven’t received any salary since I tried to return. I feel this is incredibly unfair because I didn’t participate in the strike, I was on legitimate leave, and they didn’t even accuse me of anything in their formal complaint. Am I entitled to get my job back immediately? And shouldn’t they pay me for the time I’ve been prevented from working? I’m really confused about my rights here. Thank you po for any guidance.

    Sincerely,
    Ricardo Cruz

    Dear Ricardo,

    Thank you for reaching out. I understand your frustration and anxiety regarding your current situation with Makina Works Inc. Being prevented from returning to work, especially when you were on approved leave and not formally charged in the company’s complaint, is indeed a serious concern that requires careful examination under Philippine labor laws.

    Your core question touches upon fundamental rights related to employment security, reinstatement, and backwages, particularly when an employee is sidelined due to a labor dispute they weren’t directly implicated in according to the employer’s own formal actions. Generally, employees who are not found to have committed any wrongdoing, especially those not formally charged by their employer in connection with alleged illegal activities, should not be deprived of their employment or wages.

    Understanding Your Rights When Unfairly Sidelined During Labor Disputes

    The situation you described, where you were effectively prevented from resuming your duties without any formal charge or notice of dismissal against you personally, strongly suggests a potential case of constructive dismissal or, at the very least, an unjustified denial of your right to work and receive wages. Philippine labor law provides significant protection to employees against unjust removal from their jobs. The cornerstone of this protection is the principle of security of tenure, which means an employer cannot terminate an employee without just cause (valid reasons related to the employee’s conduct or performance) or authorized cause (valid business reasons like redundancy or closure) and without observing procedural due process.

    When an employee is found to be illegally dismissed, the standard remedy is reinstatement to their former position without loss of seniority rights and the payment of full backwages.

    “An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.” (Labor Code of the Philippines, Article 294 [formerly Article 279])

    This provision underscores the legal mandate to restore an illegally dismissed employee to the position they would have occupied had the dismissal not occurred, along with compensation for the earnings lost during the period of dismissal.

    In scenarios involving labor disputes like strikes, while employers have the right to take action against employees who participate in illegal activities, this action must be directed specifically at those proven to be involved. The principle of individual culpability is important. An employer cannot simply implement a blanket refusal to allow employees back to work based on a general labor problem, especially for those, like yourself, who were not involved and, crucially, were not even included in the formal complaint filed by the company.

    Jurisprudence consistently holds that the burden of proving that a dismissal was for a just or authorized cause rests squarely on the employer. If the employer fails to discharge this burden, the dismissal is deemed illegal.

    “In illegal dismissal cases, the employer bears the burden of proving that the termination was for a valid or authorized cause. Failure to discharge this burden means that the dismissal was illegal.” (Based on established Philippine jurisprudence)

    Your situation is distinct because you weren’t even formally accused by Makina Works Inc. in their NLRC complaint regarding the strike. This significantly weakens any potential justification the company might try to offer for preventing you from working. Their failure to charge you implies an acknowledgment, at least formally, that you were not among those they considered responsible for the alleged illegal acts.

    Consider the distinction:

    Employee Status Employer’s Action Potential Legal Standing
    Formally charged by Employer in NLRC complaint for illegal strike participation. Prevented from working pending case resolution. Subject to the outcome of the NLRC case; reinstatement/backwages depend on whether illegal acts are proven against them individually.
    NOT formally charged by Employer in NLRC complaint; prevented from working. (Your Situation) Prevented from working without specific charge or due process. Strong case for immediate reinstatement and full backwages, as there is no formal accusation or proven cause justifying the prevention from work. Likely constitutes illegal dismissal.

    Preventing an employee from reporting for work without a valid reason or proper procedure can be considered constructive dismissal. This occurs when an employer’s actions create a hostile or unreasonable work environment, or involve an unjustified suspension or prevention from work, effectively forcing the employee out.

    “Constructive dismissal exists where there is cessation of work, because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in pay’ and other benefits… It exists when an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.” (Based on established Philippine jurisprudence)

    The fact that Makina Works Inc. did not include you in their complaint but still refuses you entry strongly suggests they lack a specific, lawful basis related to the strike to keep you out. Your approved sick leave further supports your non-involvement. Therefore, you generally have a strong claim for immediate reinstatement and the payment of backwages from the time you were refused re-entry after your sick leave.

    Practical Advice for Your Situation

    • Document Everything: Keep meticulous records of your approved sick leave, medical certificates, attempts to return to work (dates, times, names of guards or personnel who denied entry), communications with management, and the copy of the NLRC complaint showing your name was excluded.
    • Send a Formal Demand Letter: Write a formal letter (preferably through registered mail or with a received copy) addressed to Makina Works Inc.’s HR or management. Clearly state your intent to return to work, reference your approved leave, note your exclusion from the NLRC complaint, and demand immediate reinstatement and payment of withheld wages (backwages). Specify a reasonable deadline for their response.
    • File a Complaint with the NLRC: If the company fails to reinstate you and pay your backwages after your demand, you should strongly consider filing a complaint for illegal dismissal (specifically constructive dismissal), unpaid wages/backwages, and potentially damages and attorney’s fees with the National Labor Relations Commission (NLRC) Regional Arbitration Branch covering Valenzuela City.
    • Gather Witness Statements (If Possible): If any colleagues can attest to your attempts to return to work or confirm your absence due to illness during the strike, their statements could be helpful, although your documentation should be primary evidence.
    • Consult a Labor Lawyer: Given the nuances of labor law and procedure, consulting with a lawyer specializing in labor cases is highly advisable. They can help draft your demand letter, prepare and file the NLRC complaint, and represent you throughout the process.
    • Do Not Sign Any Quitclaim: Be wary if the company offers a settlement that requires you to sign a waiver or quitclaim, especially if it doesn’t include full backwages and reinstatement (or appropriate separation pay if reinstatement is not feasible). Ensure you understand fully what you are signing, preferably with legal counsel.
    • Union Assistance: While ensuring your interests are distinctly represented (since your situation differs from those charged), coordinate with your union representatives. They might offer support or include your specific grievance in their broader discussions or actions, but prioritize advice tailored to your unique position.

    Your situation, where you were seemingly uninvolved in the strike and explicitly excluded from the company’s formal charges, places you on strong legal footing to demand reinstatement and backwages. The company cannot simply lump you in with those formally accused without violating your right to security of tenure and due process.

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.

  • Musta Atty, Can my employer force me to transfer to another company?

    Dear Atty. Gab,

    Musta Atty! I’m writing to you because I’m in a really confusing situation at work and I don’t know what to do. I’ve been working as a welder for a manufacturing company in Cebu for almost seven years. Recently, my company informed me that I’m being transferred to one of their sister companies as a utility worker because of ‘restructuring’. This new job pays less and is not really what I signed up for.

    I suspect that the transfer has something to do with me raising concerns about unpaid overtime. Some of my colleagues have also been complaining, but they’re afraid to speak up. Now, my employer is saying that if I don’t accept the transfer, it will be considered as abandonment of work. I feel like they’re trying to force me out, but I can’t afford to lose my job, especially now with rising costs.

    Do I have the right to refuse this transfer? Can they legally force me to take on a completely different job with lower pay? I’m really stressed about this, and any advice you can give me would be greatly appreciated.

    Sincerely,
    Ricardo Cruz

    Dear Ricardo,

    Kumusta, Ricardo! I understand your concerns about the sudden job transfer and the potential loss of income. It’s essential to know your rights in this situation. Generally, employers can’t force you into a demotion or transfer that significantly alters your job conditions, especially if it seems like a retaliatory measure.

    Is Your Employer Engaging in ‘Labor-Only’ Contracting?

    From your situation, it sounds like your company might be engaging in what’s called “labor-only contracting.” This is where a company uses a third party to supply workers but doesn’t relinquish control over those workers’ day-to-day tasks. If this is the case, the law views you as a regular employee of the main company, with all the rights and protections that come with that status.

    The concept of labor-only contracting is crucial here. It’s a prohibited act designed to prevent companies from circumventing labor laws and depriving employees of their rightful benefits. In labor-only contracting, the supposed contractor merely recruits, supplies, or places workers to perform a job for a principal. The key is whether the contractor has substantial capital or investment and whether the employees perform activities directly related to the principal’s business. If your company is using a third-party arrangement as a smokescreen to avoid its obligations to you, the law will likely recognize you as a regular employee.

    One of the primary indicators of labor-only contracting is the lack of substantial capital or investment by the contractor. If the company providing your services doesn’t have the resources to operate independently, it’s a red flag. This means the original employer is the one with the responsibility. Consider this excerpt from a Supreme Court decision:

    “In labor-only contracting, the following elements are present: (a) the contractor or subcontractor does not have substantial capital or investment to actually perform the job, work, or service under its own account and responsibility; and (b) the employees recruited, supplied or placed by such contractor or subcontractor perform activities which are directly related to the main business of the principal.”

    Another critical factor is the nature of your work and its connection to the company’s main business. If your work as a welder is directly related to the manufacturing process, it further strengthens the argument that you are a regular employee. As a regular employee, you are entitled to certain rights, including security of tenure, and can only be dismissed for just or authorized causes with due process. It has also been said that:

    “Where an entity is declared to be a labor-only contractor, the employees supplied by said contractor to the principal employer become regular employees of the latter. Having gained regular status, the employees are entitled to security of tenure and can only be dismissed for just or authorized causes and after they had been afforded due process.”

    Your employer cannot simply transfer you to another company or demote you without valid reasons and proper procedures. A forced transfer to a lower-paying job in a sister company can be considered constructive dismissal, which is essentially being forced to resign due to unbearable working conditions. It is important to consider and analyze all information, as:

    “Termination of employment without just or authorized cause and without observing procedural due process is illegal.”

    Additionally, retaliating against you for raising concerns about unpaid overtime is a form of unfair labor practice. Employers are prohibited from interfering with, restraining, or coercing employees in the exercise of their right to self-organization and other concerted activities. The purpose of your employer is something to consider.

    “Even Norkis Trading’s contention that the transfer may be deemed a valid exercise of management prerogative is misplaced. First, the exercise of management prerogative presupposes that the transfer is only for positions within the business establishment. Second, the exercise of management prerogative by employers is not absolute, as it is limited by law and the general principles of fair play and justice.”

    If your employer is retaliating against you, there is another possible avenue to pursue. Take action by gathering evidence of the transfer. If indeed it is in retaliation to concerns raised regarding overtime pays and more, then you may have a good case.

    Practical Advice for Your Situation

    • Document Everything: Keep detailed records of all communications related to the transfer, including emails, memos, and conversations.
    • Consult with a Labor Lawyer: Seek legal advice from a lawyer who specializes in labor law to assess your specific situation and discuss your options.
    • File a Complaint with the DOLE: If you believe you are being illegally dismissed or constructively dismissed, file a complaint with the Department of Labor and Employment (DOLE).
    • Refuse to Abandon Your Post: Do not abandon your current job without formal notice or resignation, as this could weaken your case.
    • Assert Your Rights: Clearly communicate to your employer that you are aware of your rights as an employee and will not tolerate any illegal actions.
    • Gather Evidence of Labor-Only Contracting: Collect evidence that shows the lack of capital or investment by the third-party company and the direct relationship of your work to the main company’s business.

    I hope this information helps you understand your rights and options. Remember, you don’t have to face this situation alone. Seeking legal advice and taking appropriate action can protect your job and ensure fair treatment.

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.

  • Can My Employer Reclassify Me as a Project Employee?

    Dear Atty. Gab,

    Musta Atty! I’m writing to you because I’m really confused about my employment situation. I’ve been working for a construction company, BuildWell Corp. in Bulacan, for almost five years as a general laborer. Initially, there was no specific contract, and I understood I was a regular employee. However, recently, the company presented me with a new contract stating I am now a “project employee” tied to the completion of a specific building project in Meycauayan.

    They said it’s just a formality, but I’m worried. What happens after this project is done? Can they just let me go? Several of my colleagues were supposedly let go when their projects were finished, but they had been with the company much longer. What are my rights in this situation? I never signed any other contracts except this one. I am concerned about losing my job and benefits, and would greatly appreciate any advice you can give. It’s been hard to sleep lately wondering whether or not my family and I can survive.

    Thank you so much for your time and expertise.

    Sincerely,
    Alfredo Fernandez

    Dear Alfredo,

    Magandang araw, Alfredo! I understand your concern regarding the reclassification of your employment status. It’s crucial to determine whether your initial employment established you as a regular employee, and what the implications are of signing a new contract designating you as a project employee.

    The key issue here is whether your work is integral to the company’s regular business operations. If so, and if no fixed-term contract existed at the start, you may indeed have grounds to claim regular employee status, regardless of subsequent contracts.

    Understanding Job Security in the Construction Industry

    Determining employment status is critical in the Philippines, as it dictates the scope of an employee’s rights and protection under the law. The classification between regular and project employees hinges on the nature of the work performed and the existence of a fixed-term contract. Let’s discuss some important factors in determining employment status, so we can better understand your rights:

    If you were hired to perform tasks vital to BuildWell Corp’s core business without a contract specifying a definite period or project, you likely gained regular employee status. This means you are entitled to security of tenure and cannot be terminated without just cause and due process.

    “To show otherwise, respondent should have presented his employment contract for the alleged specific project and the successive employment contracts for the different projects or phases for which he was hired. In the absence of such document, he could not be considered such an employee because his work was necessary and desirable to the respondent’s usual business and that he was not required to sign any employment contract fixing a definite period or duration of his engagement. Thus, Martos already attained the status of a regular employee.”

    This excerpt discusses the importance of a written employment contract specifying the project and duration of employment for an employee to be considered a project employee. If no contract of this kind existed at the beginning, you may have rights under the law as a regular employee.

    Conversely, project employees are hired for a specific undertaking, with employment tied to the project’s completion. The termination of their employment upon the project’s end is not considered illegal dismissal, provided certain conditions are met. The employer must prove you were hired for a specific project.

    “Private respondents claim that petitioner hired them as regular employees, continuously and without interruption, until their dismissal on February 28, 2002.”

    In your case, the fact that you were asked to sign a new contract after five years of employment raises a red flag. It suggests BuildWell Corp. may be attempting to circumvent labor laws by retroactively changing your employment status. It is important that employers adhere to the rules when reclassifying a role.

    The law recognizes that an employer should report the termination of a project employee to the Department of Labor and Employment (DOLE). If your termination was not reported, it may be seen as unlawful.

    “Moreover, the CA noted that respondent did not report the termination of Martos’ supposed project employment to the Department of Labor and Employment (DOLE), as required under Department Order No. 19.”

    The fact that you were asked to sign a new employment contract raises the possibility of constructive dismissal. Being asked to sign an updated contract that changes the terms of your job can be considered a form of termination.

    “Being a regular employee, the CA concluded that he was constructively dismissed when he was asked to sign a new appointment paper indicating therein that he was a project employee and that his appointment would be co-terminus with the project.”

    This passage highlights that requiring a regular employee to sign a new contract changing their status to project employee can be seen as constructive dismissal. Thus, any termination that follows may be illegal.

    Practical Advice for Your Situation

    • Do not sign the new contract immediately: Take time to review the contract carefully and seek legal advice before signing it.
    • Gather evidence of your employment: Collect all documents related to your employment, such as payslips, company IDs, and any written communication from BuildWell Corp.
    • Consult with a labor lawyer: A labor lawyer can assess your situation, advise you on your rights, and represent you in negotiations with your employer or in legal proceedings if necessary.
    • Document your job responsibilities: Keep a record of your daily tasks and responsibilities to demonstrate that your work is essential to BuildWell Corp.’s regular business operations.
    • Consider filing a complaint with DOLE: If you believe your employer is violating labor laws, you can file a complaint with the Department of Labor and Employment (DOLE).
    • Negotiate with your employer: Attempt to negotiate with BuildWell Corp. to maintain your status as a regular employee or to receive fair compensation if they insist on terminating your employment.
    • Be prepared to take legal action: If negotiations fail, be prepared to file a case for illegal dismissal with the National Labor Relations Commission (NLRC).

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.

  • Can My Employer Fire Me for Mistakes and Deduct My Car Loan from My Final Pay?

    Dear Atty. Gab,

    Musta Atty! I hope you can shed some light on my situation. I’m Reginald Baltazar, and until recently, I was a Branch Manager for a large retail chain here in Cebu City. I’ve been with the company for about 7 years, working my way up. Last month, there was a major issue with inventory management at my branch. Due to a miscalculation in ordering during a big sale event and some unexpected delays in logistics, a significant amount of perishable goods worth around P85,000 spoiled before they could be sold.

    My area supervisor was furious. We had meetings, I submitted incident reports explaining the challenges, including staffing shortages during that peak period. I admitted my oversight in the final ordering decision but highlighted the contributing factors. Initially, HR conducted an inquiry and seemed to understand it was a complex situation, maybe warranting a strict warning or suspension. However, last week, I received a termination letter citing ‘gross negligence’ and ‘loss of trust and confidence’ because of the financial loss and alleged failure to manage resources properly.

    To make matters worse, I have an outstanding balance of about P150,000 on a company car loan program I availed of two years ago. The termination notice mentioned that my final pay, including my last salary, 13th-month pay pro-rata, and unused leave credits, will be withheld and applied to my outstanding car loan. They said I still owe them money even after applying my final pay. Is this legal? Can they just fire me like this, especially since I’m a manager, and take my entire final pay for the loan? I feel the dismissal was too harsh and the withholding of my pay unfair. What are my rights here?

    Hoping for your guidance.

    Sincerely,
    Reginald Baltazar

    Dear Reginald,

    Thank you for reaching out. I understand this is a very stressful and concerning situation, dealing with both job loss and financial worries simultaneously. Losing a long-term position, especially under circumstances involving trust and financial implications, can be challenging.

    Based on your account, there are two main legal principles at play: first, the standard for dismissing a managerial employee based on loss of trust and confidence, and second, the rules regarding the offsetting of an employee’s debts against their final wages and benefits. While employers have the right to discipline and dismiss employees for valid reasons, this right must be exercised fairly and in accordance with the law, respecting an employee’s security of tenure and right to earned wages.

    Navigating Dismissal for Trust Issues and Final Pay Claims

    Losing one’s job is difficult, particularly when it involves allegations like loss of trust. For employees in managerial positions, the standards applied can differ slightly from rank-and-file staff due to the nature of their responsibilities. Employers generally place a high degree of trust in managers, who are responsible for overseeing operations, resources, and personnel. Consequently, a breach of this trust can be considered a serious offense.

    The law recognizes loss of trust and confidence as a just cause for terminating an employee, particularly one holding a position of trust, such as a manager. However, this does not give employers an unrestricted license to dismiss. While the proof required might be less stringent than ‘proof beyond reasonable doubt,’ the employer must still have a solid basis for this loss of trust.

    “The mere existence of a basis for the loss of trust and confidence justifies the dismissal of the managerial employee… Proof beyond reasonable doubt is not required provided there is a valid reason for the loss of trust and confidence, such as when the employer has a reasonable ground to believe that the managerial employee concerned is responsible for the purported misconduct and the nature of his participation renders him unworthy of the trust and confidence demanded by his position.”

    This means your employer needs to demonstrate, through substantial evidence, that your actions (or omissions) related to the inventory spoilage constituted misconduct sufficient to justify losing their trust in your capacity as a Branch Manager. It cannot be based on mere suspicion or arbitrary judgment. The incident involving the spoiled goods and the resulting financial loss could potentially form such a basis, but the overall context, your explanations, and any mitigating factors should ideally be considered.

    It’s important to remember that even managerial employees enjoy security of tenure. This means they cannot be dismissed without just or authorized cause and proper procedure (due process, including notice and hearing). The severity of the penalty (dismissal) should also be proportionate to the offense committed.

    “However, the right of the management to dismiss must be balanced against the managerial employee’s right to security of tenure which is not one of the guaranties he gives up… the loss of trust and confidence must be substantial and founded on clearly established facts sufficient to warrant the managerial employee’s separation from the company. Substantial evidence is of critical importance and the burden rests on the employer to prove it.”

    Regarding the deduction of your outstanding car loan from your final pay, Philippine jurisprudence is quite clear. An employer generally cannot unilaterally offset an employee’s debts (like car loans or cash advances unrelated to salary) against their earned wages and monetary benefits upon separation. Your final pay – consisting of unpaid salary, pro-rata 13th-month pay, and commutation of unused leave credits – is protected compensation earned through your labor.

    The obligation to pay these earned benefits arises directly from the employer-employee relationship. In contrast, your car loan stems from a separate debtor-creditor relationship, even if facilitated by the company. These are treated as distinct legal matters.

    “…the employer’s demand for payment of the employees’ amortization on their car loans… is not a labor, but a civil, dispute. It involves debtor-creditor relations, rather than employee-employer relations.”

    Therefore, your employer’s remedy for recovering the outstanding loan balance is typically through a separate civil action or through mutually agreed-upon arrangements, not by withholding your legally mandated final pay. While they can demand payment, they cannot simply confiscate your earned wages to satisfy the debt without your express consent or a court order allowing such offset. Furthermore, the principle regarding the finality of decisions, while related to court or labor tribunal rulings, underscores the importance of established procedures. If an initial HR assessment suggested a lesser penalty, and this was later escalated to dismissal without perhaps a clear re-evaluation or appeal process internally that adheres to due process, it might raise questions about the fairness of the final decision, similar to how appellate bodies respect decisions not properly challenged.

    “It is a well-settled procedural rule… that an appellee who has not himself appealed cannot obtain from the appellate court any affirmative relief other than those granted in the decision of the court below.”

    While this applies to court appeals, the underlying principle highlights that decisions or findings should generally stand unless properly challenged or reviewed through the correct procedures.

    Practical Advice for Your Situation

    • Review Your Termination Notice and Company Policies: Carefully examine the grounds cited for dismissal and cross-reference them with your company’s code of conduct regarding negligence, performance standards, and disciplinary procedures.
    • Document Everything: Gather all relevant documents – your employment contract, the incident reports you submitted, communication with HR and your supervisor, the termination letter, and details of the car loan agreement. Note any inconsistencies or procedural lapses.
    • Formally Demand Your Full Final Pay: Write a formal letter to your employer demanding the release of your unpaid salary, pro-rata 13th-month pay, and leave conversions, explicitly stating that the car loan deduction is improper.
    • Address the Loan Separately: Acknowledge the outstanding car loan as a separate obligation and perhaps propose a payment plan, but maintain that it should not be offset against your final wages.
    • Assess the Dismissal’s Validity: Consider whether the dismissal for loss of trust was truly based on substantial evidence and if the penalty was proportionate to the offense, considering your tenure and performance history.
    • Note Initial HR Assessment: If HR initially indicated a lesser consequence, document this as it might suggest the eventual dismissal was disproportionate or hastily decided.
    • Seek Legal Counsel: Consult with a labor lawyer immediately. They can provide specific advice based on the full details of your case, help you negotiate with your employer, or assist in filing a complaint for illegal dismissal and non-payment of wages/benefits with the NLRC if necessary.
    • Understand Employer’s Recourse for Loan: Be aware that the company may pursue a separate civil case to recover the loan balance if you cannot reach a settlement.

    Dealing with both dismissal and financial disputes can be overwhelming, Reginald. Asserting your rights regarding your final pay is crucial, as is evaluating the grounds for your termination. Remember that while managers are held to high standards, dismissals must still be fair and legally compliant.

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.

  • Can My Employer Terminate Me For Taking Sick Leave?

    Dear Atty. Gab,

    Musta Atty? I’m writing to you because I’m really confused and worried about my job. Last month, I had a terrible migraine and couldn’t go to work. I informed my supervisor and even submitted a medical certificate when I got back. A few other colleagues were also absent that day due to various reasons, mostly health-related. Then, last week, our HR started sending us notices about allegedly violating company policy by taking ‘unauthorized leave.’

    Now, they’re threatening to terminate us, claiming we participated in some sort of illegal work stoppage, which doesn’t make sense because we were all just sick. I’ve been with the company for five years and always followed the rules. Is it legal for them to do this? I’m really scared of losing my job, especially because I have a family to support. Any advice you can give would be greatly appreciated.

    Salamat po.

    Sincerely,
    Ana Ibarra

    Dear Ana,

    Musta Ana! I understand your concern regarding the notices you and your colleagues received. It sounds like your employer is alleging that your absences constituted some form of illegal work stoppage or mass leave. I assure you, under Philippine labor law, employers cannot simply terminate employees for valid absences like sick leave if properly justified and within company policies.

    Understanding Your Rights Regarding Termination for Absences

    The key question here revolves around whether your employer followed the proper procedures for termination and whether there was just cause. Under the law, employees have the right to security of tenure, meaning they cannot be dismissed without a valid reason and without being given due process. This includes both procedural and substantive due process, where employers must follow specific steps when terminating an employee, including providing written notice of the charges and an opportunity to be heard.

    In your situation, it’s important to determine whether your employer met these requirements. Did they provide you with a clear and specific explanation of the charges against you? Did they give you a reasonable opportunity to explain your side of the story? Did they conduct a hearing or conference where you could present your evidence and defend yourself? If they failed to do any of these things, then your termination may be considered illegal.

    Furthermore, the reason for your termination must be a valid one under the law. Serious misconduct is often cited as a ground for dismissal, but it must be of a grave and aggravated character. Simply being absent due to illness, with proper notification and documentation, generally does not constitute serious misconduct. As the Supreme Court has stated:

    Misconduct has been defined as improper or wrong conduct; the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful in character implying wrongful intent and not mere error of judgment. The misconduct to be serious must be of such grave and aggravated character and not merely trivial and unimportant. (Aliviado v. Procter & Gamble, Phils., Inc.)

    The absence must be serious, be related to the performance of the employee’s duties, and must show that the employee has become unfit to continue working for the employer. In your situation, being sick does not meet that standard.

    Moreover, you and your colleagues were terminated for allegedly participating in an illegal strike, the Court defines strike as:

    any temporary stoppage of work by the concerted action of employees as a result of any industrial or labor dispute. (Art. 212(o) of the Labor Code)

    Here, you and your colleagues were absent for various reasons to attend to your personal needs or affairs, and you reported for work on the afternoon after receiving the text messages asking you to do so showing no intention to go on strike.

    Under the implementing rule of Art. 277, an employee should be given “reasonable opportunity” to file a response to the notice, it stated that:

    This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint.

    The 24 hours they gave you to respond to the notice is severely insufficient.

    The Court stated that:

    The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. (Art. 277(b) of the Labor Code)

    From your statements, the employer does not have proof to prove that your dismissal was for a just cause.

    Practical Advice for Your Situation

    • Document Everything: Keep records of all communication with your employer, including notices, memos, and emails.
    • Consult with a Labor Lawyer: Seek professional legal advice to assess the specific details of your case and determine the best course of action.
    • File a Complaint: If you believe you were illegally dismissed, file a complaint with the National Labor Relations Commission (NLRC).
    • Gather Evidence: Collect any evidence that supports your claim, such as medical certificates, attendance records, and company policies.
    • Attend Hearings: If a hearing is scheduled, attend and present your case with the assistance of your lawyer.
    • Negotiate with Your Employer: Consider negotiating a settlement with your employer to avoid a lengthy legal battle.

    Remember, you have rights as an employee, and it’s important to assert those rights if you believe they have been violated. Don’t hesitate to seek legal assistance and explore all available options to protect your job and your livelihood.

    Hope this helps!

    Sincerely,
    Atty. Gabriel Ablola

    For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

    Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.