Employee entitled to separation pay if job termination justified

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Persida Acosta

Persida Acosta

Dear PAO,
My friend is suffering from a contagious disease, which could take months to heal. Since he cannot work because of his condition, he was told by his boss that he is already terminated. Is this legal? Will my friend receive something from his employer for the 26 years he has been with them?
Ming

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Dear Ming,
The law allows an employer to terminate the services of his/her employee if the latter is afflicted with an ailment and his/her continued employment is detrimental to his/her health or that of his/her co-employees or is proscribed by law. This is explicitly stated under Article 248 of the Labor Code of the Philippines, to wit:

“Art. 284. 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 pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.”

Before an employee may be terminated based on the aforementioned law, however, it is incumbent upon the employer to justify the termination by obtaining a certification from a competent public authority that indeed the employee is suffering from a disease and the same is of such nature or at such a stage, that it cannot be cured within a period of six (6) months even with proper medical treatment(Sec. 8, Rule I, Book VI, Omnibus Rules Implementing the Labor Code).

An excerpt of the decision of the Supreme Court in the case of Mariano N. Tan vs. National Labor Relations Commission (G.R. No. 116807, April 14, 1997) is a case in point:

“Clearly, it is only where there is a prior certification from a competent public authority that the disease afflicting the employee sought to be dismissed is of such nature or at such stage that it cannot be cured within six (6) months even with proper medical treatment that the latter could be validly terminated from his job.

xxx

Obviously, the condition imposed by petitioner finds no basis under the law. To reiterate, contrary to his insistence that respondent first obtain a medical certificate attesting that he was already cured of pulmonary tuberculosis, the above-quoted Sec. 8, Rule I, Book VI, of the Omnibus Rules is clear that the burden is upon petitioner, not respondent, to justify the dismissal with a certificate from a competent public authority that respondent’s disease is at such stage or of such nature that it cannot be cured within six (6) months even with proper medical treatment. For petitioner’s blatant failure to present one, we can only rule that respondent Ibutnandi’s dismissal, like that of Garrido, is illegal, invalid and unjustified.”

The foregoing considered, if the termination of your friend is justified, then he is entitled to receive a separation pay equivalent to his half (1/2) month salary for every year of service. Otherwise, the same is illegal.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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1 Comment

  1. Dear PAO,
    Gusto qo lng po sana malaman kung paano po ba ang batas ng pag day off ng isang kasambahay.Once amonth or twice amonth po ba.Ang sabe po kase sa akin ng amo qo twice amonth daw po ang off qo..aalis po ako ng madaling araw ng sabado ang balik po nun ay sabado din po ng hapon..20 years old na po ako dalawang bata po ang inaalagaan qo nagluluto,naglalaba,nag paplantsa at nag llinis po ako ng bahay.

    4000k po ang sahod qo pero ang sabe po ng amo qo iba daw po talaga dapat ang pasahod pag part ng cavite mababa daw po ang bigay 2000 or 3000 lng daw po dapat..rochellene