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The answer to this question depends on two (2) factors: First, what is the nature of your employment? Second, was the termination justified or unjustified under the law?

Under the law, employment may be regular or casual. It is said to be regular where the employee has been engaged to perform activities, which are usually necessary or desirable in the usual business or trade of the employer.

Excluded from this concept are: (a) where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee; and (b) where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

If the employment is not any of the above, then, it is casual.

A carpenter hired by a furniture manufacturer qualifies as a regular employee, but the same carpenter hired by a bank to fix a defective part of its premises is considered only as a casual employee.

The difference between a regular employee and a casual one is that the former has security of tenure, while the latter has none.

Thus, if a person is hired for a fixed period, like a clerk hired to take over the functions of another who is on vacation or maternity leave, he does not have security of tenure. His employment shall be good only during the absence of the regular employee.

Usually, before one becomes a regular employee, he undergoes probation for a period not exceeding six (6) months, unless his employment is covered by an apprenticeship agreement stipulating a longer period.

The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement.

Someone who is allowed to work after the probationary period becomes a regular employee.

What are the valid causes for terminating an employee?
Under the Labor Code, the employer may terminate an employee for any of the following causes:

(a) serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work. Thus, if the employer absolutely prohibits smoking within his gasoline station and the employee violates this prohibition, the latter may be terminated.

(b) gross and habitual neglect by the employee of his duties. Thus, a teacher who is frequently absent without any justifiable reason may be terminated by the school.

(c) fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative. Thus, a teller who uses for his own purpose cash received from the bank’s depositor/s could be terminated.

(d) commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative. Thus, if the employee punches his supervisor after the latter had scolded him for a wrong work done, the employee may be terminated.

(e) installation of labor saving devices. Thus, if an employer decides to mechanize his operations and by reason of that the services of a worker shall no longer be required, that worker may be terminated.

(f) to prevent losses. Thus, an exporter who no longer expects to receive orders from his customers (as they had closed shop) may reduce his work force.

(g) when the employee is found suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health or to the health of his co-employees. Thus, one who is suffering from insanity may be terminated.

To what is a terminated employee entitled?
The answer to this question depends on the cause of the termination.

An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full back wages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

An employee who is terminated for cause is not entitled to anything, except:

(a) if termination would be due to the installation of labor-saving devices or redundancy - in which case, the employee shall be entitled to separation pay equivalent to at least one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher.

(b) if termination is due to retrenchment to prevent losses or due to disease, the separation pay shall be equivalent to one (1) month pay or to at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year.

Atty. Eva Romero-Abella is the Managing Partner at Abella & Romero, Lawyers, contact her at 882-0935 or 883-3616 to 17. Abella & Romero Law Office is located at 2nd Floor PCS Center, 8586 Sgt. F. Yabut Circle, Guadalupe, Makati City.

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