"I was placed on a temporary layoff by my employer from June 2020 to December 2020. Yesterday, I received a notice that our employment will be finally terminated because of retrenchment. However, such notice also provides that those who applied for work elsewhere during the layoff period but prior to the retrenchment are not qualified for separation pay. I am worried that I might not qualify as one of those employees who are entitled to separation pay since I applied and was, in fact, employed elsewhere without formally notifying my previous employer. With these circumstances, I want to know if my previous employer has the legal right to deny me my separation pay?Leon
Dear Leon,The answer to your question is yes. Under the law, specifically Article 298 and Article 299 of Presidential Decree 442, otherwise known as the Labor Code of the Philippines, it is provided that separation pay is authorized only in cases of dismissals due to any of the following reasons: installation of labor saving devices, redundancy, retrenchment, cessation of the employer’s business, and when the employee is suffering from a disease and his/her continued employment is prohibited by law or is prejudicial to his/her health and to the health of his/her co-employees.
Article 298 provides:“In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one month pay for every year of service. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one month pay or at least one-half month pay for every year of service, whichever is higher. A fraction of at least six months shall be considered one whole year.
“Article 299. Disease as ground for termination. An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, that he is paid separation payequivalent to at least one month salary or to one-half month salary for every year of service, whichever is greater, a fraction of at least six months being considered as one whole year.” (Emphasis and underscoring supplied)As can be gleaned from the previously cited laws, the common denominator of the instances wherein payment of separation pay is warranted dictates that it is given whenever an employee was dismissed by the employer. In your case, however, there was no dismissal to speak of since what transpired based on your narration is that you voluntarily applied elsewhere without waiting to be recalled. As such, you are deemed to have resigned from your previous employer, and thus, would not be entitled to separation pay.
The Supreme Court in JPL Marketing Promotions vs Court of Appeals(GR 151966 July 8, 2005), ponencia of Associate Justice Dante Tinga, with a similar factual milieu as in your query, held that an employee is not entitled to separation pay if he applied elsewhere while on a valid floating status, to wit:“Furthermore, Art. 286 (now Art. 301) of the Labor Code allows the bona fide suspension of the operation of a business or undertaking for a period not exceeding six months, wherein an employee/employees are placed on the so-called ‘floating status.’ When that “floating status” of an employee lasts for more than six months, he may be considered to have been illegally dismissed from the service. Thus, he is entitled to the corresponding benefits for his separation, and this would apply to suspension either of the entire business or of a specific component thereof.“As clearly borne out by the records of this case, private respondents sought employment from other establishments even before the expiration of the six-month period provided by law. As they admitted in their comment, all three of them applied for and were employed by another establishment after they received the notice from JPL. JPL did not terminate their employment they themselves severed their relations with JPL. Thus, they are not entitled to separation pay.”(Emphasis and underscoring supplied).We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com"
Please support us in writing articles like this by sharing this post
Share this post to your Facebook, Twitter, Blog, or any social media site. In this way, we will be motivated to write articles you like.
--- NOTICE ---
If you want to use this article or any of the content of this website, please credit our website (www.affordablecebu.com) and mention the source link (URL) of the content, images, videos or other media of our website.
was written by Mary
under the Legal Advice
category. It has been read 175
times and generated 0
comments. The article was created on 15 September 2021
and updated on 15 September 2021