I resigned from my former employer, and was able to submit the completed clearance form in April 2015. I was assured that my last pay will be released 45 days after submission of the form, but until now I have not received my last pay. They also have not issued my certificate of employment and BIR Form 2316.
I have made several demands and follow-ups but to no avail. This is very frustrating, and I really want to resolve this matter immediately because I cannot avail certain benefits from my present employer due to the non-submission of my certificate of employment and BIR Form 2316. What should I do? Please advise.
A reciprocal obligation is created when a contract of employment is executed. Essentially, the employee is obliged to perform the tasks which are designated for the position he or she is holding, while the employer is obliged to compensate the employee adequate salaries and wages, as well as provide the latter such benefits mandated by law. In both cases, the parties must comply with the tenets of their contract, provisions of our labor laws, as well as collective bargaining agreements, if there be any.
Accordingly, your employer is obliged to compensate you for the entire period which you have rendered services in their favor. If you have salaries which remain unpaid by your employer, you may demand the same. You may consider giving them a formal demand letter, specifically stating therein the amount which you are claiming, for what period such is applicable, and the particular period within which they have to settle the payment thereof.
If they fail to settle within the given period, you may opt to file a complaint before the Department of Labor and Employment (DOLE). Article 217, Chapter II, Title II, Book V of the Labor Code of the Philippines provides: “(a) Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: x x x (6) Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding P5,000 regardless of whether accompanied with a claim for reinstatement. x x x”
We want to emphasize that you will first undergo “SEnA” or the “Single Entry Approach” which is a 30-day mandatory conciliation-mediation procedure. You may include in your complaint the failure of your employer to issue you your requested certificate of employment and BIR Form 2316. Pursuant to Section 6 of Department Order No. 107-10, Series of 2010 in relation to the DOLE Rules of Procedure of the Single Entry Approach, the following labor-related disputes are subject to a 30-day mandatory conciliation-mediation procedure: “x x x (b) claims for any sum of money, regardless of amount; x x x and (g) any other claims arising from employer-employee relationship.”
Should you and your employer fail to reach an amicable settlement within the 30-day period, the “SEnA” Desk Officer shall issue a referral of your complaint to the appropriate DOLE Agency or Office for formal hearing and procedure, or if both of you agree, refer the unresolved issues to voluntary arbitration (Section 14, Department Order No. 107-10, Series of 2010).
We hope that we were able to answer your queries. Please be reminded that 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 firstname.lastname@example.org