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Illegal Termination/Illegal Suspension Please advice

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jeff0316


Arresto Menor
Hi Atty.It is nice to have a site like this to provide free legal assistance. Here is my story
I am a systems administrator in a BPO company in Philippines. I was terminated after my 7 months stay in the company. I was sent to Europe for training when I had a conflict with my colleague and he said to my manager in Europe that I am doing part time job in the Philippines he based his accusation on my Linked In profile where I put there I am a consultant for other company, I put it there because I am also helping my friends in that companies. I was undergoing training in Europe when my manager went to the training venue and escorted me back to our office in Europe and was told verbally that I am being suspended for 24hours. The reason was conflict of interest based on my linked in profile. They took my laptop and my cell phone and was escorted out of the office and was brought to the hotel after arriving at the hotel my European manger informed the reception that only room charges will be paid by the company because I am suspended the food and other things will be charged to me. I don’t have any means of communication during that time with my family. When my other colleagues arrived from their training that is the only time I was able to call my family here in the Philippines and inform them what happen to me. My wife was also 8months pregnant during that time. I was also informed by my colleagues that all of them received an email from my European manager saying that “I am suspended for suspicion of working in as par time with other company” they also provided me with copy of this. The following day I called my HR here in manila and informed them what happened. After the phone conversation my European manger went to my hotel room and verbally told me that I am not suspended anymore and I can return to work. But there were no car to bring me to the office he didn’t even asked me if I want to go with him on that day so I wasn’t able to report to work. The following day a taxi was provided and I was sent to our office in Europe and I was served with a show cause notice. I was sent back to Philippines and was told that I can now report back to work because my suspension was lifted already. When I was reporting to work my access was removed that is why I cannot do my work and was served with a letter titled Leave with pay. The reason is that I don’t have access to perform my duties that is why they are giving me 5 days leave with pay. Then I replied on the show cause notice they provided. I said on my reply that my representation as a consultant is due to the fact that my friends from these two companies is asking question and help from me. I am not getting any monetary or in kind gifts from my help to them. My company made an investigation and they even called the companies and they proved that I am not connected with those companies. After the 5days leave with pay they gave me another letter extending my 5 days leave with pay because they are not yet done with the investigation and still I don’t have any access to perform my work. After my 2nd 5 days leave with pay I reported to the office and a termination letter was served to me effective the same day the reason is “Lost of trust” because I presented myself in Linked in profile as a consultant from other companies and they noted there that I am not entitled to last pay but only the days I worked will be paid. They want me to sign a quit claim form I did not sign it at first. But I was not feeling well that day that is why I went straight to the hospital and found out that I was suffering from dengue and also my 2 kids is showing symptoms I emailed my HR manager saying I really need my salary because I am sick also my two kids are sick and my wife is pregnant . Here is the copy of my email to my hr.
“I read the quitclaim but I can't understand what the last 2 paragraph means. What I see there is that you are going to pay me the amounts which are my worked days, leaves and other benefits. Ma'am, I really need the salary for my remaining days at Company. My wife is pregnant and due to give birth this first week of October. I am also sick with Dengue, and my 2 kids are also showing symptoms of acquiring dengue. Please consider my situation. I don't want to sign the document but in our phone conversation today, you informed me that your lawyer told you that I can sign the quitclaim under protest because Company will not release the money if i don't sign the quitclaim. Again, I don't know what it means, but I really need the money. I will just go to your office tomorrow. ”
So I went to the office and signed the quitclaim but I put on the last 2 paragraphs that seems to be saying that I am waiving my rights I enclosed the two paragraphs and noted it “UNDER PROTEST” with my signature and also the signature of the companies representative.
Here are my questions.
1. Does it have a merit if I will file Illegal dismissal and Illegal suspension case?
2. I am employed here in manila can they suspend me outside the country and remove my means of communication to my family?
3. Can my manger in Europe suspend me verbally and escort me outside the office?
4. Can he email my colleagues saying that I am suspended? I think that is against confidentiality.
5. Can they serve me termination letter effective same day?

Thanks in advance.

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cebuanolawyer


Arresto Menor
Definetely you have a valid cause of action. Even granting, for purposes of argument, that indeed you were infact guilty of conflict of interest, the dismissal cannot be done outrightly! There must be "DUE PROCESS" first. If I were you, better lodge a complaint before the Regional arbitration Branch of the NLRC. You have a strong case

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jeff0316


Arresto Menor
Thanks for a fast reply. I will update you on the case thanks. But usually how long will it take for this case to be resolved.

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cebuanolawyer


Arresto Menor
up to 7 months from filing of the position paper.

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attyLLL


moderator
your remedy is to file an illegal complaint dismissal at the nlrc. there have been cases where employees were found to be moonlighting, but the supreme court ruled that this was not sufficient to terminate them.


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jeff0316


Arresto Menor
Thanks Attylll for your reply. I posted that I am a consultant for the two companies just to boost my market value. Because my friends are working there and sometimes they do ask questions or guidance from me when it comes to their work. Also My former HR called this companies and verified if I am connected but this companies denied my connection to them. During the investigation I asked my HR via email on the status of their investigation and got a reply via email also stating that they already proven that I dont have any connection with those companies.
Here is the message:V****S has coordinated and confirmed with Company 1 through their HR Staff and Manager that ****** is not connected with the aforesaid company
Here is a copy of my termination letter.
“Dear Mr. ******,

This refers to the recently conducted investigation conducted by the Company in connection with the charges against you, particularly those set forth in the Show Cause Notice dated September 03, 2010 for allegedly engaging in authorized activities or in any other personal business that in conflict with the Company’s business, in violation of the exclusivity/non-compete provisions in your employment contract.

After a thorough and careful evaluation of the evidence available, including your explanation to the charges raised against you contained in your reply letter date 10 September 2010, we find that you have seriously breached your fiduciary duties. Your act of or presenting yourself as Consultant in Company 1 and Company 2 in your professional profile in LinkedIn in website while employed in the Company constitute serious misconduct, dishonesty and breach of trust, all of which have resulted in the company’s loss of trust and confidence in you. You have proven yourself unworthy and unfit to hold your position as Systems Administrator-MS Application.
Your explanation that your representation in your webpage in the LinkedIn in website was meant as a joke is not acceptable.

We wish to stress that as Systems Administration-MS Application, you are tasked to perform key and sensitive functions in the interest of the Company and, therefore, bound by the more exacting work ethics.

Your conduct clearly shows that you cannot carry the responsibility to observe the Company’s moral and ethical principles necessary in the performance of your functions.

In view of the foregoing, the company is left without any alternative but to terminate your employment effective immediately upon receipt of this notice. Since your dismissal is for just and valid cause under Article 282 of the Labor Code, you are not entitled to any termination or separation pay. You shall, however, receive all unpaid salaries and accrued benefits that you may have earned during your employment, if any, upon completion of the clearance process. To facilitate the clearance process, kindly surrender and return to the company the following, laptop, headphone, mobile set, etc.

Yours sincerely,
************

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attyLLL


moderator
my answer is still the same, you can file a case at nlrc. all you have to do is go to their office in banawe and fill up a form. good luck.


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8 Illegal Suspension of 30 days. on Tue Mar 26, 2013 12:13 pm

floremarlove


Arresto Menor
Atty.

I have a question, is it rightful or legal to be on a preventive suspension for 30 days prior to the the due process? The letter of suspension was given the day the suspension starts and within 3 days from receipt of the said letter, they asked the employee to give a letter of explanation. Furthermore, it stated in the letter of suspension that the employee will be under preventive suspension for 30 days while the investigation is going on...does this make sense and serve the 30 days suspension?

The suspension was served due to a long overdue of unliquidated cash advances. Which from the company policy also states that any cash advances beyond 15 days will automatically be deducted from the employees salary. But what had happened was, the employee was subjected to a preventive suspension of 30 days, instead of giving the employee an option to have it deducted from the salary as mentioned in the policy.

Also, the tasked given to the employee is to transact outside and from that date of transaction, the employee accidentally left the items, as to the employees memory, it was definitely left in the taxi. Where the employee having hard time of traces as the employee had been transferring and riding different taxis. Also as stated in the letter of the employee's explanation the willingness to pay the amount through salary deduction as suggested by the Finance Manager based on company's policy on Cash Advances.

Please advise and thanks in advance.

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attyLLL


moderator
30 days is a maximum period for preventive suspension and is allowed only if the employee poses a threat to the employer or co-employees. it is not meant to be a punishment


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floremarlove


Arresto Menor
What kind of threat? Do we have any citations on what kind of threat that is punishable under the labor code? do you think the case above is a threat to the employer nor to its co-employees? Thanks.

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attyLLL


moderator
no, i don't think it's a valid basis.


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floremarlove


Arresto Menor
Thank you so much AttyLLL. You've been so helpful since from the beginning...so what should be the employee's best thing to do after knowing that 30 days of preventive suspension is not valid. Therefore, the case was considered as Illegal Suspension?

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attyLLL


moderator
he can file a complaint at nlrc for illegal dismissal


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inabusongmedrep


Arresto Menor
The right of employer to impose preventive suspension is not found in the Labor Code itself.

The oft-cited legal basis for imposition of preventive suspension is Section 8 and Section 9 of Rule XXIII, Book V, of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997, which read as follows:


Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.

Section 9. Period of suspension. No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker

FYI

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15 Illegal Suspension on Fri Sep 19, 2014 1:47 pm

Sheila Ortega-Bello


Arresto Menor
I would like to inquire about the harassment case that was charged to my friend because he was automatically put under preventive suspension without investigation.

The main office called him and showed him the letter made by the complainant. He was given a chance to explain in writing but was not even given enough time to respond. They just asked him to explain right away After a few hours or less, they made a decision to suspend him without conducting an investigation. No evidence or witness was asked. They just based it on "she said" thing.
That time, my friend was shocked so he just agreed on what they want.

When he went home, I asked him for a copy of the letter of complaint and the notice of his suspension and he said that he was not provided any copy or documentation. He denied the allegation so I believe he should still be given due process.

And I'm also questioning the HR people because cases like this should be confidential but it seems that everyone in their office knows what happened. Even those who ae working on a different branch is texting him about what happened.

Can we file a complaint against the company for not giving him the due process? What about the confidentiality issue?
The complainant t is also texting my friend that he can be jailed for what he did. That her fiance is from the army and his uncle is a police officer. My friend already lose his job eventhough its just a suspension, because he don't want to work there again due to the disgrace he got for what happened even if he was not given the due process.

And let's say he will be proven not guilty, what charges can we file against the complainant?

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