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Query: I have worked as an employee at a hotel in our city
for the past eight years. Initially, I was a janitress, but became a
supervisor in the cleaning of rooms. I became a permanent employee
for five years until I was kicked out without notice due to alleged
austerity program. However, I believed that my dismissal was due to
my refusal to have sex with an alien hotel guest.
With my dismissal, I am now virtually a
beggar—not knowing where to get money for my subsistence. Can I
take legal action against my former employer? Can you please advise
me on what to do? There are other victims like me—and they are
anxiously waiting for your advice.—Rachelle S.
Response: You can sue your former
employer for illegal dismissal.
As ventilated by the Supreme Court in AMA
Computer College v. Ely Garcia and Ma. Teresa Balla (G.R. 166703;
prom. April 14, 2008), retrenchment and redundancy are two distinct
grounds for termination arising from different circumstances—thus,
they are in no way interchangeable. Redundancy exists when the
service capability of the workforce is in excess of what is
reasonably needed to meet the demands of the business enterprise. A
reasonably redundant position is one rendered superfluous by any
number of factors, such as overhiring of workers, decreased volume
of business, dropping of a particular product line previously
manufactured or phasing out of service activity priorly undertaken.
Among the requisites of a valid redundancy program are: (1) the good
faith of employer in abolishing the redundant position; and (2) fair
and reasonable criteria in ascertaining what positions are to be
declared redundant and accordingly abolished. (Asian Alcohol
Corporation vs. National Labor Relations Commission, 364 Phil. 912).
On the other hand, retrenchment is the
termination of employment effected by management during periods of
business recession, industrial depression, seasonal fluctuations,
lack of work or considerable reduction in the volume of the
employer’s business. (De la Cruz vs. National Labor Relations
Commission, 335 Phil. 932). It is resorted by an employer to avoid
or minimize business losses. (Somerville Stainless Steel Corporation
v. National Labor Relations Commission, 350 Phil 859).
Citing its ruling in the case of F.F. Marin
Corporation vs. National Labor Relations Commission (455 SCRA 154),
the High Tribunal declared that there are three basic requisites for
a valid retrenchment to exist, to wit: (a) the retrenchment is
necessary to prevent losses and such losses are proven; (b) written
notice to the employees and to the DOLE at least one month prior to
the intended date of retrenchment; and (c) payment of separation pay
equivalent to one month pay or at least one-half month pay for every
year of service, whichever is higher. To justify retrenchment, the
employer must prove serious business losses.
To repeat, you can sue your former employer for
illegal dismissal. Your first move is to file a complaint with a
Labor Arbiter. If you get an unfavorable decision, you can appeal to
the National Labor Relations Commission. And if you are not
satisfied with the decision of said body, you can still go up to the
Court of Appeals.
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Above all things, let us reflect on the
following statement of our Lord and master Jesus Christ: “Come to
me, all of you who are tired from carrying heavy loads, and I will
give you rest. Take my yoke and put it on you, and learn from me,
because I am gentle and humble in spirit; and you will find rest.
For the yoke I will give you is easy and the load I will put on you
is light.” (Matthew, 11: 28-30)
esmabutas@yahoo.com
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