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ILLEGAL SUSPENSION

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1 ILLEGAL SUSPENSION on Thu Oct 28, 2010 1:44 pm

jacob


Arresto Menor
I am a employer of one respective pawnshop. I worked for a company for 1 year and 2 months, I was a regular employee. I am authorized to enter the vault when the Vault Custodian absent only. On my 1 year at company HRD gave a memo that I had fake acceptance worth 2,100. Since I am one of the employee who did the transaction, the said amount will be deducted from my salary until the amount has been settled. I agree the notice because it's my fault. After 2 months have a incident when I acted as Vault Custodian I noticed that the piece of jewelry being asked by customer was missing inside the vault. Kinabukasan, I informed the Vault Custodian happen yesterday. Later I report it to our Area Manager. Later, my employer gave a notice letter of 30 days suspension because of fake item worth 2,100 I received from customer. On our code of discipline, it state violation of the Code of Conduct and Discipline (Neglect of Duty Ė 2.11) which is classified as a MODERATE offense(verbal and written warning) and on second occurrence has corresponding actions of 5 Ė 10 days of suspension without pay.This is my first offense. But unfortunately, they suspend me. They did not follow the code of discipline. They accused me the incident happened when I acted as Vault Custodian. HRD said "Part of administrative due process since ongoing pa ang audit,she will be placed under suspension. Para walang hassle sa auditing." So I file a case to NLRC. Before the hearing our company admitted na nagkamali lang daw po sila nang bigay na memo sa akin.
Sa tingin nyo po Atty tama lang po ba ang ginawa ko na nagreklamo ako sa NLRC? At kung nagkamali ang HRD nang bigay na memo sa akin bakit ito pinirmahan ng mga TOP MANAGEMENT?
Ngayon po ay pinapagawa kami ng position paper ng NLRC passed on last week of November. Yesterday, I received letter from my company that my complaint at NLRC was dismissed because dahil di daw ako nagpasa nang position paper ko. Atty, last week pa po nang Nov ang deadline ng position paper namin. At bakit our company ang nagpadala ng letter sa akin na dismissed na ang complain ko hindi ang NLRC?
Ano po kaya ang maganda kong gawin sa ngayon? Kasi iniipit ako nang company ko at kakasuhan daw nila ako sa nawalang alahas sa branch worth 300K. Dahil sa pagrereklamo ko sa knila sa NLRC.
Hope na matulungan nyo po ako Atty LLL. Salamat po.

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2 Re: ILLEGAL SUSPENSION on Thu Oct 28, 2010 7:13 pm

attyLLL


moderator
are you sure about the date of filing of your position paper? definitely a notice from your employer has no effect of terminating the case. only a notice from the arbiter will do that, and you will still have 10 days after receipt of a notice from the arbiter to revive your case and submit your position paper.

what evidence do you think they will provide to show that there really are missing jewelry? did they put this in writing?


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3 Re: ILLEGAL SUSPENSION on Thu Oct 28, 2010 7:50 pm

jacob


Arresto Menor
Yes, I'm sure the date of submission of position paper Nov 16 and I have a copy during the hearing at NLRC.

After the incident I confront the Vault Custodian and informed it that one customer pawned jewelry worth 30K was missing inside the vault and he said "All jewelries inside the vault was breakdown and Don't report it to Area Manager." Wala kaming maalala ng mga kasama ko sa branch na nabuhos ang alahas sa loob ng vault kahit kelan.

After conducting the one month audit of company auditors and the result is almost 300K lost jewelries inside the vault of the branch and before the discovery of the incident there were only two persons who were authorized and allowed to enter the vault. The Vault Custodian (Mxxxx) and me (but I acted during Mxxxx was absent).
That after inventory and investigation company found out that some of the pieces of jewelry were recorded in the released book as redeemed when in fact they were not redeemed, on the other hand some are recorded in the auction book as sold at public auction when in truth they were not received by the auction team.

Atty LLL tama po ba na iyan ang batayan ng company para kasuhan nila ako ng QUALIFIED THEFT as a reliever of Vault Custodian? Ganun may complaint ako sa NLRC against our company?
Paano po ba ang tamang process na gagawin ko bilang employee?

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4 Re: ILLEGAL SUSPENSION on Thu Oct 28, 2010 8:52 pm

attyLLL


moderator
That after inventory and investigation company found out that some of the pieces of jewelry were recorded in the released book as redeemed when in fact they were not redeemed, on the other hand some are recorded in the auction book as sold at public auction when in truth they were not received by the auction team.


if this is true, then the persons who made the recordings should be the ones made liable. mere access to the vault room, in my opinion, is not enough for the case to prosper. there has to be convincing evidence that only you could have taken the jewelry. here is a related case: http://www.lawphil.net/judjuris/juri2003/feb2003/gr_143676_2003.html

based on this case, it is possible for them to file a case. it really depends on what evidence they will present if it will prosper.


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5 Re: ILLEGAL SUSPENSION on Mon Nov 08, 2010 3:21 pm

mroado24


Arresto Menor
Dear Atty,
Ang ihihingi ko po ng payong legal ay ang illegal dismissal na nangyari sa aking asawa.Last wed ay pumasok sya ng trabaho ng sabihan sila(3 po sila) na last day na nila yun at kinabukasan ay hindi na sila dapat pumasok at pwede na nilang makuha ang separation pay at 13th month nila. Ang ipinagtataka nila ay bakit po mabilisan at ni walang written/o verbal notice na ginawa ang kumpanya. At ang ibabayad lang po sa kanilang separation pay ay 1/2 month for every year, 3 years din po siya sa company. At dapat daw po ay gumawa at ipasa nila sa company ang resignation letter nila para sila mabayaran. Ano po ang dapat gawin ng aking asawa, pwede po ba siyang magfile ng complaint sa labor for illegal dismissal at hingin ang nararapat na bayad dahil po ni wala man lang silang notice prior sa suspension na suspension na ginawa. Hangang ngayon po ay di pa nagpasa ang asawa ko ng resignation letter na hinihingi nila kaya wala pa pong nakuha ang asawa ko. Please advise us....marami pong salamat.

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6 Re: ILLEGAL SUSPENSION on Mon Nov 08, 2010 8:31 pm

attyLLL


moderator
mroado, that is very irregular. I recommend that she first writes a letter stating that she does not intend to file a letter of resignation. perhaps management will rethink what they are doing.

your wife certainly has a right to contest her termination if they refuse to let her get back to work.


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7 Re: ILLEGAL SUSPENSION on Wed Nov 10, 2010 10:48 pm

jacob


Arresto Menor
Atty, gud pm!
Nagpapagawa na po ako sa PAO ng position paper ko for NLRC case pero hinahanap sa akin ang mga papers ko.Bukod tanging suspension memo lang ang naitabi ko at conversion namin ng HR thru YM.

1. Paano po ang gagawin kapag ang mga evidence na pandefensa ko sa NLRC case e nasunog o naitapon ko na sa tagal ng panahon (like regularization paper, transfer of branch assign, payslip, etc.)

2. Anong maaring maging defensa ko?

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8 Re: ILLEGAL SUSPENSION on Thu Nov 11, 2010 3:42 pm

attyLLL


moderator
id, sss payments, bir certificates of tax withheld, perhaps the company filed a position paper in the old case.


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9 Re: ILLEGAL SUSPENSION on Tue Nov 23, 2010 8:29 am

jacob


Arresto Menor
First file ko nang case sa NLRC ay year 2008 pa nadimissed ito for my failure to file my Position Paper.
Nagrefile ako this year 2010. Second file ko na at ibang arbiter na ang may hawak.

Question ko po ay:
1. Legal po ba ang refile ko nang case?
2. Bakit sabi ng respondent ay cannot revived,revised or reviewed by another Labor Arbiter,lest there will be no immutability of judgment or end to litigation. The doctrine of re judicata also applies suppletorily to administrative cases.? Ano pong ibig sabihin ng respondent?
3. Bakit po kaya ako pinapadalahan ng respondent ng copy nila ng position paper? Ano po kaya ang purpose nila?
4. Hindi po ba NLRC Arbiter ang dapat magbigay sa akin ng copy ng position ng respondent?

Kindly explain po kasi naguguluhan ako bakit lahat nang documents ng respondent ay pinapadalahan nila ako nang copy?

Natatakot din ako baka may ibang habang ginagawa ang respondent kaya nila ako pinadalahan ng copy nila ng position paper.

Maraming Salamat!

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10 Re: ILLEGAL SUSPENSION on Wed Nov 24, 2010 9:40 pm

attyLLL


moderator
as we said previously, you only have 1 year to revive a case, but the arbiter may see some reason why the case can be relaxed.

2. respondent is arguing that your case cannot be revived. that's all.

3. is there a date when you are supposed to file your position paper? did you appear? if you filed a position paper, the other side is also required to furnish you a copy of theirs. nothing sinister about it.


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11 Re: ILLEGAL SUSPENSION on Wed Dec 22, 2010 1:54 pm

siriusblack19


Arresto Menor
pwede din po palang mag reklamo for illegal suspension... can you please advise what is the procedure? am i required to have a lawyer po? thank you very much!!!

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12 Re: ILLEGAL SUSPENSION on Wed Dec 22, 2010 10:40 pm

attyLLL


moderator
you should first decide whether you want to stay in the company or not.

the procedure is to go to nlrc and fill up a form


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13 Re: ILLEGAL SUSPENSION on Wed Dec 22, 2010 10:50 pm

siriusblack19


Arresto Menor
atty naka resign na po ako sa company... so meaning i can go there. papaano po kung talo ako sa nlrc, pwede pa ba nila akong kasuhan for damages?

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14 Re: ILLEGAL SUSPENSION on Fri Dec 24, 2010 3:05 pm

attyLLL


moderator
so you want to contest a previous suspension, but you have already resigned? what are you after, the wages during that period you were suspended? in my experience, some employers will file a counter claim, but i've never seen a case where it was actually granted.


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15 Re: ILLEGAL SUSPENSION on Tue Jan 04, 2011 1:01 pm

bebongpating


Arresto Menor
Hi Atty.

Inquire ko lang po. Same din po halos kay siriusblack19. Kasi po, may kaibigan po ako na sinuspend. Binigyan naman daw po sila ng paper kung bakit sila sinuspend. Actually preventive suspension daw po. Pero hindi sila hiningan ng explanation para dun sa allegations regarding sa suspension. During the pendency ng suspension nila, siyempre po suspendido din yung wages nila, tama po ba na pati 13th month suspended?

Ngayon, naramdaman nila na niluluto na yung dismissal nila so nag-resign na sila. Sa pagkakwento po sa akin, dismissed po ata sila at hindi kinonsider na resigned. Pwede po ba magreklamo sa NLRC regarding dun sa suspension na ginawa sa kanila kahit na "resigned" na sila? Ang habol sana nila eh baka pwede po makuha yung wages nila, 13th month sa panahon na suspended sila at yung final pay nila, kung meron man.

Dalawa po kasi sila, yung isang kasamahan niya nag-file na po ng kaso sa NLRC at first hearing this January 2011. Pwede po kaya na parang mag-"intervene" o sumali yung kaibigan ko sa kasamahan niya dahil same facts lang naman sila, same position at same department?

Pasensya na po at napahaba ang kwento, maraming maraming salamat po.

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16 Re: ILLEGAL SUSPENSION on Tue Jan 04, 2011 5:36 pm

attyLLL


moderator
he can file his case and request that the case be consolidated with the other case.


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17 Re: ILLEGAL SUSPENSION on Thu Sep 06, 2012 3:02 pm

vix laplana


Arresto Menor
Hi Atty,

I am an employer, our company in Las Pinas, is a barangay micro enterprise. usually we are hiring, undergrads, over-age, mga desperate na for work, mga taong na retrench at mga taong tambay lang. Our company is legit, complete with docs, pero not so sturctured when it comes to HR guidelines, memo-issuances & contracts issuances. Our work is in the electrical fiedl mostly, project-based, seasonal in nature. We hire contract workers, mga pakyawan, arawan. We tell the workers about the tenure of their work, na pag may trabaho, may pasok. So, most of them are "no work, no pay"..Our regular staff is 10 & below only.

This 2nd Qtr of the year we rehired a foreman, he has been with us on & off, puro seasonal work lang. He is aware of that, and he is aware na wala siyang deductions, whatsoever. So, he gets his pay P15k a month, na buo. Siya mismo nagsabi sa amin na ayaw niya magpa deduct.

However, last August 1, pinagpahinga muna namin siya, dahil bukod sa wala pa siyang gagawin, ay nainis kami sa kanya dahil sa di niya pagpapa alam na di siya papasok. Lagi niyang ginagawa dati, pero we never issued a memo to him. Puro verbal reprimand lang.

Now , he filed a complaint in NLRC for illegal dismissal, asking for back wage & benefits. Ang di lag namin naibigay sa kanya so far is his 13th month pay. We have a copy of a contract he signed last 2010 that he is a "project-based & seasonal worker " only. After that, wala na kami na issue sa kanya, even if we are getting him on & off.

Questions: Are we liable to pay him the back wage since August? may illegal dismissal ba para sa mga seasonal worker?
Do we have to pay him back the SSS benefits, when we did not deduct any from him? Can I get a copy of a position paper, so I can copy the format pls.

pls. advise. Thanks.

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18 Re: ILLEGAL SUSPENSION on Sat Sep 08, 2012 10:05 pm

attyLLL


moderator
if your argument is that he is a seasonal worker, then you have to state that he is still an employee, that it is off season, and most of all, prove that there are indeed seasons in your line of work.


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19 Re: ILLEGAL SUSPENSION on Tue Nov 06, 2012 2:32 pm

fritz_dem


Arresto Menor
Good day Atty;

I'd like to seek your advise regarding suspension. I was given a notice of suspension for 1 day (memo) without pay (of course). The reason why I would be suspended is because I failed to punch in/out within the course of my daily working routine. I was given a written warning then written reprimand then finally this suspension memo. Under our company's policy we are not allowed to fail to punch in/out (biometrics) beyond 3times. What happen in my case is that out of maybe I forgot sometimes when I punch out to take my lunch, I failed to punch in back in which I reached the "quota" I went beyond the allowable times.

My question is, is this really allowed by DOLE? I mean, suspension is quite heavy if you weigh it right? Can this be considered an illegal suspension? I've been loving my job, but with the kind of disciplinary action the company is imposing to us, this really made us demotivated.

In addition, what if the company would send me to other working station and I'm not favor on it, since I already feel that they are doing something to have me resigned? I can feel that they are doing a constructive dismissal here, can I still say NO? What if they insist to transfer me, and I insist to stay, can this be a ground for insubordination that would lead them to terminate my employment? What are possible protection you can advise to us atty?

Please enlighten us on this, since there are lot of us who feel the same agony.

Thank you so much and more power atty.

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20 Re: ILLEGAL SUSPENSION on Wed Nov 07, 2012 9:59 am

Patok


Reclusion Perpetua
companies create company policies to police its employees. As an employee you should comply to these policies unless they are inhumane or against the law. Failure to comply is your fault not the company. It's company's discretion to impose sanctions to teach their employees lessons. In your case, you were already given 2 memos, but still you did it for the 3rd time. If you think that you can not abide by the company policies, you can always resign and look for a new job.

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21 Re: ILLEGAL SUSPENSION on Wed Nov 07, 2012 10:10 am

fritz_dem


Arresto Menor
Patok wrote:companies create company policies to police its employees. As an employee you should comply to these policies unless they are inhumane or against the law. Failure to comply is your fault not the company. It's company's discretion to impose sanctions to teach their employees lessons. In your case, you were already given 2 memos, but still you did it for the 3rd time. If you think that you can not abide by the company policies, you can always resign and look for a new job.

Thanks for your comment sir, I understand, my point is only why that imposed sanction is so heavy? We're using biometrics, some of us don't take our lunch, but because the company is so strict with pounch in/out during lunch time, we the employees resort to follow the rules and sometimes end up forgetting to punch in back. I'm saying about the need to punch out during lunch time even if we are not taking our lunch and just continue our job.

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22 Re: ILLEGAL SUSPENSION on Wed Nov 07, 2012 8:06 pm

Patok


Reclusion Perpetua
it's the company rule, it's not the company's fault that you are not taking your lunch.. but lunch or no lunch, you have to time in, time out.. so if you forget.. it's your fault.

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23 Re: ILLEGAL SUSPENSION on Thu Nov 08, 2012 1:37 pm

fritz_dem


Arresto Menor
actually, there has been inconsistency with the punch out/in during lunch break period. The first time we asked our HR on this and made an appeal that perhaps they could consider us to no longer punch out for those who are not taking their lunch since we also have in between breaks in the morning and in the afternoon. They gave us their nod on that, but suddenly they changed their decision to really have us punch out/in even if we are not taking our lunch. Isn't it unfair for us "employees" that instead of using the lunch break time to nap we just continue to perform our job? Coz if you'd look at the whole picture, it's the company who get the benefits having us not taking our breaks.

If you were on our company's shoe, would you still push for the same policy or consider our appeal? That's it, always by the book..and they made the book of policy but they don't look after the welfare of their employees. Mahirap ba intindihin ang salitang konsiderasyon? Wla namang mawawala sa kanila if they'd consider our request of not punching out/in if we're not taking our lunch. It's a win-win solution, di naman cla lugi ksi patuloy ang pagtratrabaho namin.

BTW, are you an atty po ba?

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24 Re: ILLEGAL SUSPENSION on Fri Nov 09, 2012 10:08 am

Patok


Reclusion Perpetua
i'm not a lawyer.. but i have been doing HR/Admin work for more than 15 years now..

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25 Re: ILLEGAL SUSPENSION on Fri Nov 09, 2012 11:48 am

fritz_dem


Arresto Menor
Patok wrote:i'm not a lawyer.. but i have been doing HR/Admin work for more than 15 years now..

But it doesn't guarantee you to have the best ideas for this case. Also, how could I be so sure that you're in the middle between the employees and your employer? IMO, you are just giving your OPONION, an I am here to look for a legal advise.Furthermore, you seems to be one-sided here and obviously you sided to your employer which I find unjust for the employees. I bet if your company has the same case as ours, don't they? So basically, I really can't take your advise and OPINION.

Anyway, thanks for sharing your opinion I appreciate it.

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26 Re: ILLEGAL SUSPENSION Today at 6:37 pm

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