Separation pay of kasambahay

BY PERSIDA ACOSTA, Manila Times, Sept 7, 2019

Dear PAO,

I am the personal assistant of an expat living in Makati City. I take care of my boss’ office and domestic concerns, including the hiring of his maid. My boss’ consultancy contract with the local company he works with in the Philippines was shortened, and as his personal assistant, I am tasked to pre-terminate his contracts in the Philippines, which include his lease contract in the condominium that he rents and the services of his maid. Considering that there are six months left to the contract of the maid, is my boss required to give a severance pay to his maid? If so, how much?

Greg

Dear Greg,

The law relevant to your query is Republic Act (RA) 10361, also known as the “Domestic Workers Act” or the “Batas Kasambahay.” Section 32 of the said law provides as follows:

“Sec. 32. Termination of Service. — Neither the domestic worker nor the employer may terminate the contract before the expiration of the term except for grounds provided for in Sections 33 and 34 of this Act. 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. If the domestic worker leaves without justifiable reason, any unpaid salary due not exceeding the equivalent 15 days work shall be forfeited. In addition, the employer may recover from the domestic worker costs incurred related to the deployment expenses, if any: Provided, that the service has been terminated within six months from the domestic worker’s employment.

“If the duration of the domestic service is not determined either in stipulation or by the nature of the service, the employer or the domestic worker may give notice to end the working relationship five (5) days before the intended termination of the service.

“The domestic worker and the employer may mutually agree upon written notice to pre-terminate the contract of employment to end the employment relationship.”

From the above, it is clear that if the employer terminates a domestic worker without a justifiable reason or for reasons other than those provided in Section 34 of RA 10361, the employer is required to pay the following to the domestic employee: compensation already earned by the domestic employee; indemnity equivalent to 15 days work; and pro-rated 13th month pay.

As regards the payment of the pro-rated 13th month pay, it should be pointed out that domestic workers are entitled to 13th month pay, as provided in Section 25 of RA 10361. If the services of a domestic worker is terminated before the payment of the 13th month pay, the domestic worker is entitled to the “monetary benefit in proportion to the length of time he worked during the year, reckoned from the time he started working during the calendar year up to the time of his termination from the service.” (Section 6, Revised Guidelines on the Implementation of the 13th Month Pay Law).

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.