Man seeks redress for ‘unfair’ retrenchment

Dear PAO,
My father lost his job two months ago. He used to be an account executive. Their company told him that they had to retrench several employees, including my father, because the company has not been getting any income for the past several months. He has gone back and forth to their office because he wants to go back to work and he feels that his dismissal was not proper. We just want to know, if their company does not take him back, what can my father do?
Chandra

Dear Chandra,
Retrenchment is one of the recognized modes of terminating the services of a private employee. More often than not, it is done for the purpose of cutting company losses or when the employer can no longer afford the services of the employee.

But while retrenchment is recognized under our laws, there are procedures and requirements under the Labor Code of the Philippines, which must be complied with.

As provided therein, “The employer may also terminate the employment of any employee due to x x x retrenchment to prevent losses x x x, by serving a written notice on the worker and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. x x x” (Article 283, id)

As can be gleaned therefrom, it is essential, in order to consider the termination valid, that the employee was terminated (1) to prevent losses on the part of the employer and such losses are proven and that (2) written notices have been served on the worker affected and the now Department of Labor and Employment at least one month before the effectivity date of the retrenchment.

In the situation of your father, you only mentioned that the reason for which his employment was terminated was because the company has not been getting any income for the past several months. However, such reason may not be summarily equated to an act of preventing company losses.

We would like to stress that the losses mentioned under the law must be real and substantial and, as already mentioned it must be established and proven. You also failed to mention in your letter whether or not notice was given to your father and to the Labor department at least one month prior to the date he was terminated.

If his termination took effect without being properly notified, your father may question the same. And if it is proven that his employer violated the pertinent provision of our laws, they may be ordered to reinstate your father to his former position.
Lastly, even assuming that he was legally retrenched by their company in accordance with the procedures and requisites abovementioned, his former company must have paid him his separation pay which is equivalent to one month pay or at least one-half month pay for every year of service, whichever is higher.

Kindly take note also that a fraction of at least six months shall be considered as one year, thus the employee must be paid accordingly. (Article 283, id) Thus, your father may invoke his right to be paid such benefit granted under the law. Should the company fail to give him said separation pay, his termination may still be considered invalid and unlawful and proper action may be taken before the of Labor department.

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. –PERSIDA ACOSTA, Manila Times

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