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ILLIGAL DISMISSAL

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1 ILLIGAL DISMISSAL on Sun Oct 24, 2010 3:22 pm

rodel


Arresto Menor
I worked for a company for 2 years and 3 months, I was a regular employee. I did an honest mistake, I put unwanted software to my work computer. (Actually, this software is not for Personal computer. It will not work or run on the personal computer. It is not installed on the windows registry not even on the program file, this is just like an ordinary unknown file on the system. It is for portable game console.) I stored that file on the computer for temporary backup purpose only and not to use since my portable game console was on the store where i bought it for warranty. They accused me of Installation of unlicensed software. Given that I did a mistake but we have a company's code of discipline. On our code of discipline, it state there that on that particular offense there is a corresponding penalty which is not to be terminated yet but will be given a final written warning. This is my first offense. But unfortunately, they terminated me. They did not follow the code of discipline. They accused me of copyright infringement also for that matter which is the reason for my termination.
Secondly, i signed a waiver "under protest" which state that i will not file a case against the company. Is this valid or not.

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2 Re: ILLIGAL DISMISSAL on Sun Oct 24, 2010 3:32 pm

rodel


Arresto Menor
One more thing. Our Human Resource Manager told us before when we had a meeting with her that our offshore manager has no power to terminate us but on the HR to decide. But in my case the only person who recommend to terminate me is my offshore manager. I got all the documents to support my statement.

Thank you and God bless!

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3 Re: ILLIGAL DISMISSAL on Sun Oct 24, 2010 5:41 pm

attyLLL


moderator
please describe this program. something like bittorrent? were you downloading copryighted material?

your remedy is to file a complaint for illegal dismissal at nlrc.


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4 Re: ILLIGAL DISMISSAL on Sun Oct 24, 2010 6:06 pm

resjudicata


Arresto Mayor
Your company should have observed the two-notice requirement and hearing before they dismissed you. Non-compliance with these requirements is a clear violation of your right to due process, even if the ground for your dismissal is for a just cause.

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5 Re: ILLIGAL DISMISSAL on Wed Oct 27, 2010 8:11 pm

rodel


Arresto Menor
it came from my PSPGo. When I bought it, it has a games in the memory of it. I just copy it to my work computer for back up purpose only not to play the game in the computer. Because my PSPGo went wrong and needs to be check and for warranty.

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6 Re: ILLIGAL DISMISSAL on Wed Oct 27, 2010 11:55 pm

attyLLL


moderator
what kind of work do you do, what rank, and what is the nature of the business of the company? these are relevant in determining how gross your misconduct was. and how did they find out?

resjudicata's point is also relevant, did the give you a notice to explain and gave you five days? did you file a written explanation and was an admin hearing held? were you given a second notice that you were terminated?


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7 Re: ILLIGAL DISMISSAL on Thu Oct 28, 2010 1:24 am

rodel


Arresto Menor
BPO company as a Backoffice technical support, yes they gave me NTE and 5 days to submit my explanation letter. after 28 days of suspension, they gave me Notice of decision that i was terminated. Yes there was an admin hearing but in the absence of me. The Decision making bodies were my offshore manager, Manager of HR to the Philippines and HR Director. They were on the phone conversation.

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8 Re: ILLIGAL DISMISSAL on Thu Oct 28, 2010 1:45 am

rodel


Arresto Menor
BPO company as a Backoffice technical support, yes they gave me NTE and 5 days to submit my explanation letter. after 28 days of suspension, they gave me Notice of decision that i was terminated. Yes there was an admin hearing but in the absence of me. The Decision making bodies were my offshore manager, Manager of HR to the Philippines and HR Director. They were on the phone conversation.

According to our Code of Discipline.

Offense: Installation of unlicense software.

Corresponding Penalty
First Offense - Final Written Warning
Second Offense - Termination

my question is

does this code of discipline void or ineffective to my case since this is my first and only offense?

since i backup an unlicense software on companys computer. and I honestly admit it was my mistake, does my action will not consider for a final written warning?

this may be a serious offense but not grave offense.

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9 Re: ILLIGAL DISMISSAL on Thu Oct 28, 2010 1:52 am

rodel


Arresto Menor
I saw on an email trail which was the conversation between HR manager and HR Director that i will be recommend to have a final written warning but my offshore manager stopped it and did not concur. So they base on my offshore manager's opinion. and terminate me.

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10 Re: ILLIGAL DISMISSAL on Thu Oct 28, 2010 7:08 pm

attyLLL


moderator
in my opinion, you have a good cause to question your termination. again, your remedy is to file a complaint at nlrc. all you have to do is go there and file your complaint. you will first be required to undergo conciliation conferences, if no agreement is reached, then i recommend you get legal counsel to assist you in preparing a position paper. good luck.


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11 Re: ILLIGAL DISMISSAL on Sat Oct 30, 2010 4:28 pm

rodel


Arresto Menor
Thank you for your advice. One more thing. About the waiver that I signed under protest. I mean, I put U.P. right after my signature. Does this waiver will reflect against me?

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12 Re: ILLIGAL DISMISSAL on Mon Nov 01, 2010 10:09 am

attyLLL


moderator
they will use the waiver against you. many previous decided cases disregard the waiver. good luck


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13 Re: ILLIGAL DISMISSAL on Sat Dec 18, 2010 11:48 am

jodolie


Arresto Menor
I am working in a call center for 6 years and I am a regular employee. For 6 years of service, I violated the section 10. The section is a final warning. This is first time offense. I am wondering, if section 10 is a final warning and the sanction is termination, should it be legal to terminate my service due to the policy of the company. If we will say final warning, I assumed that I already received warning previously, right? But I never received any. This incident happened last 12/8/2010 and I explained the incident last 12/10/2010. After I submitted the explanation, I never heard anything but I heard humored that my service will be terminated up to January. Is it legal without discussing it to me nor following the process to talk with me for due process? I need clear explanation because I think I still have the right of the security of tenure. I have a last question, is there any expiration of the incident report given to an employee if they did not discus it within 15 days after I submitted it?

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14 Re: ILLIGAL DISMISSAL on Mon Dec 20, 2010 2:02 pm

attyLLL


moderator
what section 10? what is your offense?

there are two requirements for a valid termination.
1) valid procedure - 5 days given in a written notice to explain, a hearing if the employee denies the act, and a written notice of termination
2) valid basis for termination amounting to gross and habitual neglect or serious misconduct or similar.


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15 Re: ILLIGAL DISMISSAL on Tue Dec 21, 2010 7:45 am

jodolie


Arresto Menor
In our company policy, section 10 is appropriate of releasing the call. The sanction is "Termination". I already explained the incident and I did not deny it. In that case, is their any hearing if I did not deny it or automatically they can apply the sanction after they received my explanation? I was only given 48 hours to explain the incident and they give it to me 2 days after the incident and I have to submit it right away. So, to make it fast, I explain and admit immediately the incident.

2. Due to my admission, could be a termination be applied to me regardless of my service to the company?

3. It is only my first offense, and based on my understanding about amounting to gross and habitual neglect or serious misconduct or similar, it may not fall on that. Amounting to gross, that may not affect the whole account. Habitual, meaning it is your habit of releasing customers that will affect the company profit.

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16 Re: ILLIGAL DISMISSAL on Tue Dec 21, 2010 8:06 am

jodolie


Arresto Menor
My follow up questions:
1. Is my offense may also be fall in serious misconduct?
2. If the policy of the company regardless of how many years you are working on it is to terminate who ever caught on that offense, could be valid and legal?
3. The incident happened last December 8, is there an expiration or validity of the termination? Because at this point, I just heard about terminating my service on January and they let me continue to work since they need agent.

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17 Re: ILLIGAL DISMISSAL on Tue Dec 21, 2010 10:02 pm

attyLLL


moderator
jodolie, do you mean you dropped a call? to my mind that is simple misconduct, even if the employee handbook says otherwise. particularly if you have been there for 6 years. it should not be basis for termination.

there is no real deadline to issue a decision, except for the standard of reasonableness. it depends on the circumstances, but to me 30 days is ok.


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18 Re: ILLIGAL DISMISSAL on Thu Dec 23, 2010 1:05 am

rodel


Arresto Menor
Hello atty., good day again, i would also like to ask a follow up question. does my mistake consider as gross negligence since I did admitted that I backup an unlicensed software on my work PC.

I quoted a paragraph from my Notice of decision.

"The decision making body believes that by installing illegally pirated/cracked game software on company's computer is a grave violation which is potential for legal and financial liability on the said act not to mention copyright infringement if discovered by the authorities on a corporate computer, could result heavy fines and terrible public relations for company."

is this valid reason to terminate me?

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19 Re: ILLIGAL DISMISSAL on Thu Dec 23, 2010 1:11 am

rodel


Arresto Menor
it was not really a pirated cracked game software. it was the copy of my lawfully owned purchased game software. It was not yet installed. especially it was not for a Windows flatform software. Just an image copy of my said game software. it just sit there on my work computers hard drive as temporary backup.

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20 Re: ILLIGAL DISMISSAL on Thu Dec 23, 2010 7:26 pm

jodolie


Arresto Menor
Yes, I dropped the call. I ended it because I am not feeling well that time. I could no longer think properly. There are two kinds of dropping a call. One is, unintentional dropping, meaning, it may cause by the application, server error, accidental issue or customer ended the call after you answered it. Two is, intentional, you pressed the released button. I am in the second type of dropping the call. I intentionally dropped the call of my customer but this is my first incident happened to me. In our policy, the sanction is termination. It is too hard to accept since I served them already for 6 years. Do I have a strong case just in case they terminate my service even-though the policy in our department about my offense is termination? I am still waiting the letter of termination but until now, I did not receive it. But to prepare on it, I need a legal advise before doing any legal action.

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21 Re: ILLIGAL DISMISSAL on Mon Dec 27, 2010 10:42 pm

rodel


Arresto Menor
Hi Atty. I just need to have a legal opinion about my situation before I file the case by next year. thanks.

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22 Re: ILLIGAL DISMISSAL on Tue Dec 28, 2010 6:37 pm

attyLLL


moderator
rodel, you are asking for reassurance that you will win. there never is in litigation. to my mind you should not have been terminated, but there is no guarantee that the labor arbiter will appreciate it in the same way. neverthless, i would support your decision to file an illegal dismissal case.

jodolie, similarly, there is no guarantee, but to me one dropped call should not equate to dismissal after 6 years of service.

to initiate a labor case, you should go to nlrc in quezon city and you will be asked to fill a form. hopefully you can reach an agreement during conciliation. if not send me a pm so i can comment in your position papers.


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23 Re: ILLIGAL DISMISSAL on Fri Dec 31, 2010 7:11 am

jodolie


Arresto Menor
Thank you for the information.

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24 Re: ILLIGAL DISMISSAL on Tue Nov 15, 2011 3:10 pm

jodolie


Arresto Menor
Hi atty, I have a friend currently working in the BPO company where I work too. She applied in other company and she got hired. She continued to work in our company while she started the training in other company. She work as scheduled but someone reported to our HR and HR issued for dismissal, do this employee has no rights to defend herself? What should she do?

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25 Illegal Dismissal for Probationary... on Tue Nov 15, 2011 6:29 pm

iKABOD0828


Arresto Menor
Hi Atty,

Here's my situation:

- I was hired as an assistant manager on probationary status.

- Upon getting on-board, and for at least a month, I have no idea what the general direction of my function is since my superiors hasn't even given or told me what my general function would be.

- Well into my 3rd month, one of the owners (the one who hired me) told my Department Manager that he doesn't want to regularize me based loosely on rumors and hear-say from other personnel whom I don't even know or haven't even talked to. No formal complaints or incident reports were given.

- I continued working for the company until my 6th month, generally producing positive outputs.

- A day before my probationary period ends (in fact, just minutes), the management has given me notice of Termination of Contract effective immediately. Their reason, to avoid technicality since I am nearing the end of my probation and would be entitled to regularization.

My concerns:

- Upon hiring, the company has not provided me any expectations on what my output should be. In fact, they don't even immediately know what my responsibilities are except for the fact that I'd be assigned to this department and wanted to strengthen their middle management. Then on my last day they wanted me to sign an evaluation from one of my superiors indicating that I failed to satisfy their expectations. I never signed the evaluation, arguing that it's not true and too degrading.

- Although I was torn between performing well and finding a new job just in case I get terminated, I produced results that even my superior cannot contend.

- For the last 3 months I had monthly evaluations which my Department Manager has discussed to me. All are positive and includes recommendations for regularization.

- The management has produced evaluations, all from supposed internal customer, citing negative feedbacks. The manager who presented them to me admitted verbally that those evaluations are intended to counter my Department Manager's evaluation. His words were "to negate" then "to neutralize" my positive evaluations. Arguably, those evaluations were never meant to be objective.

I know I am still protected by Article 281 of the Labor Code since they had no just cause for termination nor have they any reason to state that I have not qualified for regularization due to failure to reach expectations since no expectations were made known to me when I started at the company. At the same time, my dismissal (six months minus 1 day) was so immediate and rushed that they even stayed after office hours ensure I finish my clearance the same day. Also, I have positive evaluations (three for the last 3 months) from my Department Manager since I had positive output in my performance.

I filed illegal dismissal (actual) at NLRC. Please give me advise to strengthen my resolve on my case. What are the possible holes in my situation?

Thanks.

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26 Re: ILLIGAL DISMISSAL Today at 8:17 pm

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