Indemnity for unjustly terminated ‘kasambahay’

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Persida Acosta

Dear PAO,
I had a ‘kasambahay’ for four years. Am I obligated to give her a separation pay? When she left, she had unpaid loans with our family. Now, she even has the nerve to harass us by filing a complaint against me, if I do not give her P30,000 as her separation pay. Firstly, I do not think she is entitled to receive that amount, and secondly, I do not have that kind of money. What should I do? Please advise me.
Lay

Dear Lay,
The concept of separation pay is clearly provided under Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines. To be sure, it is a benefit granted to private employees for termination by reason of authorized causes specifically mentioned under Articles 283 and 284 of the said code.

Such benefit may also be granted for other reasons or causes, but the same must be explicitly stated under the contract of employment or collective bargaining agreement, should the private employee and employer execute the latter.

Insofar as domestic workers or kasambahays, they are not principally governed by the Labor Code. Rather, they are principally governed by Republic Act (RA) No. 10361, otherwise known as the “Domestic Workers Act” or “Batas Kasambahay,” and the tenets set under their valid written employment contracts.

If we look closely on the provisions of RA 10361, there is no specific mention as to the grant of separation pay to terminated domestic workers. At most, what is stated under the said law is the grant of “indemnity” for unjustly terminated domestic workers, to wit:

“Section 32. Termination of Service. – x x x If the domestic worker is unjustly dismissed, the domestic worker shall be paid the compensation already earned plus the equivalent of 15 days work by way of indemnity. x x x”
Applying the foregoing in the situation which you have presented to us, we submit that you are only required to pay your former kasambahay the abovementioned indemnity if she was unjustly terminated from her employment, or if you have executed a contract of employment with your kasambahay and the grant of separation pay is specifically mentioned therein in relation to the cause for which her employment with you has been severed.

Nevertheless, it bears emphasis that your kasambahay may pursue filing a complaint against you if you have committed some other violation penalized under our existing laws. In which case, the only prudent course of action for you to take is to face the same and raise your defenses, should you have any.

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 dearpao@manilatimes.net

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