I recently hired a house helper through a manpower service provider. They immediately assigned one to my house and it’s been only two weeks since she started but I’ve been observing that something is not right with her. Even my husband and other relatives observe some weird incidents involving the new house helper. In one instance, we heard her talking to the electric fan and praying to it. She even claims that she hears angels and elves. While I don’t care much about her religious beliefs, I’m not sure if our kasambahay is mentally fit for her tasks even though the manpower service provider assured me that they extensively interviewed her. Because of this, I’d like to know if it is legal to ask for a replacement for our house helper for being perhaps mentally unfit. I would like to know also my other rights related to this. Thank you and more power!
The answer to your query can be found in the Implementing Rules and Regulations (IRR) of Republic Act (RA) 10361, which governs the employment and even replacement of house helpers or kasambahay. According to your narration, you hired your house helper through a manpower service provider, which is technically considered as a private employment agency under the law. Considering this, the provision of the above-cited law concerning the replacement of kasambahay deployed by private employment agencies applies to your case, to wit:
“Section 4. Replacement of Kasambahay by PEAs. – Within one (1) month from the day the kasambahay reported for work, the employer shall be entitled to a qualified replacement at no additional cost if any of the following grounds occurred:
a) The kasambahay is found to be suffering from an incurable or contagious disease, or mental disease, or mental illness as certified by a competent government physician;
b )The kasambahay abandons the job without justifiable cause, voluntarily resigns, commits theft or any other analogous acts prejudicial to the employer or his/her family; or
c)The kasambahay is physically or mentally incapable of discharging the minimum requirements of the job, as specified in the employment contract.
xxx” (Section 4, Rule III, Implementing Rules and Regulations of RA 10361).
It can be seen that from the aforementioned rule that mental illness is among the grounds that can be used by an employer to legally request replacement for a house helper assigned by a private employment agency. It is important to note, however, that mere allegation of mental illness is not sufficient in availing of the right to replace a kasambahay. The law expressly requires for a certification by a government doctor stating that the kasambahay that is intended to be replaced is mentally unfit to fulfill her tasks as a house helper.
Thus, if you insist that your kasambahay is mentally unfit and you intend to use such condition as a ground to justify your request to replace her, then you must obtain the certification of a government doctor to support your claim about your current house helper. And even if the agency of your house helper asserts that they have examined her, you can still have your kasambahay evaluated by a government doctor to assess her mental fitness in order to determine if she can indeed be legally replaced by her agency.
With regard to your other rights related to the replacement of your kasambahay, it is important to note that the law also entitles you as an employer to a refund of seventy-five percent (75%) of the fees paid to the private employment agency, if the agency failed to provide a qualified replacement after a lapse of one (1) month from receipt of your request for replacement (Section 4, Rule III, Implementing Rules and Regulations of RA 10361).
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 email@example.com