I recently got a job offer in Manila, Philippines that is totally one sided loaded in favour of the company. I am pasting the key extracts of the agreement, need your advice on the following:
1. Is this agreement valid in the law court of Philippines?
2. If yes, then if the company terminates me before or after the probation can I force them to give 2 months Gross salary or provide 90 days’ notice to me, which is the case if I terminate the agreement. As I expect the severance clause to be same for both sides but is not so in the agreement. THERE IS NO TERMINATION CLAUSE FOR THE COMPANY TO PAY ME OR GIVE NOTICE.
The first six (6) months from your Employment Date shall be considered as your probationary period. During this period, your job performance will be evaluated by your superiors based on reasonable standards and your adherence to Company policies made known to you at the commencement of your employment to determine your qualification and abilities to become a regular employee of the Company. The Company may terminate your services at any time during the probationary period for any of the following causes:
a. any of the just and/or authorized causes provided under the law;
b. if you fail to meet the required skills and competencies prescribed by the Company indicated in this Contract and its annexes;
c. if you fail to meet the standard of performance required by the Company;
d. if you fail to pass or successfully complete character reference or background checks;
e. if you fail to successfully complete pre-employment and/or requirements;
g. if you fail to sign the attached Non-Disclosure, Non-Solicitation and Assignment of Inventions Agreement.
If during the probationary period the Company finds that you are qualified to become a regular employee, you shall be informed thereof in writing.
To ensure stability of operations and optimize our resources effectively and/or to recoup the Company’s investment on you including honing and harnessing your skills, we will require you to commit to stay with us for at least two (2) years (“Minimum Tenure”). Should you fail to comply with this Minimum Tenure requirement by reason of voluntary termination, failure to meet standards for regularization or for termination due to just cause, you shall pay the Company the amount equivalent to your two (2) months gross compensation as agreed liquidated damages for your breach of your “Minimum Tenure” undertaking.
Termination of Employment
Without prejudice to the other terms of this employment agreement, you may terminate your employment by serving a written notice upon the Company at least ninety (90) days prior to the effective date of termination. This is to ensure that there is ample time for the Company to either seek and employ a capable individual or re-assign an existing employee/consultant capable of taking over the project/assignment being undertaken by the resigning employee. In like manner, this allows for ample time to endorse and train the same replacement in cases where an assignment/project has been completed.
The Company may terminate your employment for authorized or just causes in accordance with the Company rules and the Philippine Labor Code. However, the Company may terminate your engagement on the following grounds such as serious misconduct, theft, dishonesty, immorality, and gross neglect of duties, loss of trust and confidence, or commission of any crime punishable by law.
If on termination, you owe any amount to the Company, which amount may include (without limitation) amounts relating to:
a) overpayments that the Company may have made to you;
b) your failure to comply with the 90-days notice period as provided under this Clause 12;
c) your breach of the provisions on Training (Clause 9), Foreign Assignment (Clause 10) and/or Minimum Tenure (Clause 11),
The Company shall have the right to obtain payment by offsetting that amount against any payments it is legally obliged to make to you (i.e., final pay, 13th month pay, commissions, tax refund, etc.). In case the amount deducted is inadequate to fully pay the amounts due to the Company, you shall pay for the difference.
The Company reserves its right to file the appropriate action/s to collect the full or partial amount of any amount you owe to the Company. All incidental expenses incurred therefor shall be charged against you. These expenses shall include, but shall not be limited to, the cost of litigation, attorney’s fees and damages.
Thanks & Regards,