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Constructive Dismissal

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1 Constructive Dismissal on Wed Dec 21, 2016 7:21 pm

tike_castro


Arresto Menor
Hello!
I am a regular employee of a BPO/KPO. I have been on LOA since August 2015 until now. I had a stroke last year and I was amputated because of my stroke. I had a chance to talk to the company HR representative and company physician last October 17, 2016 when I was about to return to work. They required me to present my Fit To Work from my Cardiologist and Neurologist and presented submitted it to them last November 9, 2016. My follow up with the HR representative was last November 16, 2016. Apparently, the representative from HR told me to wait for the decision of the Upper Management. According to the email thread that I have the company physician has an assessment if I can be back to work but they have not presented a result to me (email through, November 17). Now, I was wondering if I can demand to be paid while waiting for the decision of the Upper Management team. I am running out of money to support my daily maintenance medication, expense, monthly utilities. Also, can I forward my case to NLRC? If ever worse comes to worst, can I ask for moral damages? Thank you!

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2 Re: Constructive Dismissal on Wed Dec 21, 2016 10:38 pm

lukekyle


Reclusion Perpetua
nope cannot demand to be paid while on leave. have you met with company doctors? did company put you on floating status? cannot ask for moral damages since the company has not done anything untowards against you.

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3 Re: Constructive Dismissal on Thu Dec 22, 2016 6:31 am

tike_castro


Arresto Menor
Thank u for the reply!

I met the company physician already. I had a short conversation with her together with the HR representative. They both explained to me that I am still active employee. They required me to present my Fit To Work from my Cardiologist and Neurologist and presented submitted it to them last November 9, 2016. Until now they have not given me any advise on when I should return to work. I am not sure if I am on floating status but I am not back at work, but I wanted to. This is where the problem is, I need money to support my daily expenses. That is why I am wondering if I can be paid while waiting for their decision. I can forward the email threads that I have to give you a better picture of my case.

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4 Re: Constructive Dismissal on Thu Dec 22, 2016 2:32 pm

HrDude


Reclusion Perpetua
1. Based on the concept of 'No Work, No Pay', you will not be paid.

2. Did you try following up on your status? If not, then you are considered to have slept on your rights.



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5 Re: Constructive Dismissal on Thu Dec 22, 2016 2:39 pm

tike_castro


Arresto Menor
I constantly check on my status. The HR representative told me that my current status is active. However, I have not been going to work. Operations (my department) and HR are still reviewing my "are still in the process of identifying the role fit for your return". It has been 1 and a half months since my first follow up regarding my return to work. Submitted my fit to work last Novermber 9, 2016 and I started my follow up last November 16, 2016. My last follow up was last Tuesday, December 20.

Another question, what do you mean by "I am considered to have slept om my rights?" What are the necessary actions I can do?

Thanks you!

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6 Re: Constructive Dismissal on Thu Dec 22, 2016 3:09 pm

lukekyle


Reclusion Perpetua
write them formally that you have a cleared to work from your doctors. Make sure you have a "received" copy of your letter. My guess is, they placed you on floating status, since they needed to find a replacement for you while you were sick. They can place you on floating status legally for 6 months starting nov. 9 if they acknowledge receipt of your Fit to work clearance. If not date of six months will start when you have them formally receive your fit to work clearance.

If after six months they still haven't asked you to return to work, they will either have to give you salary or give you separation pay

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7 Re: Constructive Dismissal on Thu Dec 22, 2016 3:12 pm

tike_castro


Arresto Menor
Thank you for clearing this up. ☺️

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8 Re: Constructive Dismissal on Thu Dec 22, 2016 3:24 pm

river03


Arresto Mayor
Another question, what do you mean by "I am considered to have slept om my rights?

Try ko lang sagutin. "nagpabaya".

Paki correct po sana Sir Hrdude kung mali. thanks.

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9 Re: Constructive Dismissal on Thu Dec 22, 2016 4:12 pm

tike_castro


Arresto Menor
Another question, what do you mean by "I am considered to have slept om my rights?

Try ko lang sagutin. "nagpabaya". - siguro meron namang akong karapatan na magreklamo na "nagpabaya" sila. I have been waiting for their final decision. Anong pwedeng kong gawin para hwag naman matapakan yung rights ko as an employee...or kukulitin ko lang sila sa return to work ko?

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10 Re: Constructive Dismissal on Fri Dec 23, 2016 6:24 am

HrDude


Reclusion Perpetua
river03 wrote:Another question, what do you mean by "I am considered to have slept om my rights?

Try ko lang sagutin. "nagpabaya".

Paki correct po sana Sir Hrdude kung mali. thanks.

Somewhat correct but more like 'pinabayaan'. There is a presumption that you have let the process run its course with your knowledge but without doing any action.

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11 Re: Constructive Dismissal on Fri Dec 23, 2016 6:32 am

HrDude


Reclusion Perpetua
tike_castro wrote:Another question, what do you mean by "I am considered to have slept om my rights?

Try ko lang sagutin. "nagpabaya". - siguro meron namang akong karapatan na magreklamo na "nagpabaya" sila. I have been waiting for their final decision. Anong pwedeng kong gawin para hwag naman matapakan yung rights ko as an employee...or kukulitin ko lang sila sa return to work ko?

Actually, the phrase is directed to you. If you know that your have a standing issue with HR that needed resolution, you should take action by doing follow ups. That's why i asked you what your actions were because if you are just waiting for HR's notification without doing anything, you are presumed to have 'on your rights'.

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12 Re: Constructive Dismissal on Fri Dec 23, 2016 7:14 am

tike_castro


Arresto Menor
I have been constantly following up with our HR. They say that they are still waiting for Operation's final decision. I keep on sending follow up emails but they still give me the same reason.

This was the last email coversation that we had:

On Friday, December 16, 2016, 4:51 PM, wrote:

Following up.

Thank you!


Sent from Yahoo Mail for iPhone
————

On Tuesday, December 13, 2016, 2:38 PM, wrote:

Hi C***!

Thank you for promptly replying to my email.

Now, I am getting a clearer view of the direction the company has for me. I want to thank *** for supporting my current situation. I am not lost in the dark with your response.

I wish that you would be able to provide a better view of the timeline as well in terms of Ops' decision regarding my case. I sincerely wish you understand why I have asked for such in my previous correspondence with J***. Knowing such information would help me plan in terms of properly allocating, if not stretching, resources i now have left. As I had previously written, this job is my only source of income that ultimately supports my needs, especially that of my daily medication. I wish for your understanding as to why i have constantly followed up, as getting feedback on my status is truly important.

I have included E*** in the loop because he was the SOM of the C*** BU when I left, and Shalum as the current head of the BU. Since J*** was on PTO yesterday, I sought E***'s assistance to follow up on my behalf. Considering that S*** and E*** worked closely together, they might need to give their input about my current condition. I am including my partner in the thread because he is my emergency contact and point of contact when I joined ***.

Thank you.

R

Sent from Yahoo Mail for iPhone
————

On Tuesday, December 13, 2016, 2:31 AM, wrote:

Dear R***,

Please allow me to chime into this e-mail correspondence as J*** has closely worked with me on your case.

While we are glad to hear about the improvements of your condition and that you were certified to have been ‘fit to report back to work’, it is imperative for the organization to ensure that you will be successful in the role that you will go back to.

Given the fact that you have been out of the office for a significant period of time, we are still in the process of identifying the role fit for your return. Moreso, ensuring that we will be able to provide you with more than ample re-training, catch-up sessions, etc. to put you back up to speed on

J*** or I will immediately revert to you on the next steps. This is not very far from what has Justine been communicating with you so please do let us know should you wish to discuss further.

Limiting the distribution list to HR-BP and S*** which heads the BU in Operation, unless specifically justified as to why they should be kept in the loop.. Thanks!


Kind Regards,

C***
————


I hope you can still help me. I just feel that they are putting much effort with the case that I have. I am very excited to return back to work.

If you can provide me an email address so I can forward all the email thread I have, that will very helpful.

Thank you! ☺️

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13 Re: Constructive Dismissal on Fri Dec 23, 2016 12:24 pm

HrDude


Reclusion Perpetua
You must consider also the inexistence of your old position, the capacity of the possible receiving account, your role to a possible position, your possible incompatibility with the position and/or receiving account, etc.



Last edited by HrDude on Tue Dec 27, 2016 5:33 am; edited 1 time in total

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14 Re: Constructive Dismissal on Fri Dec 23, 2016 12:26 pm

tike_castro


Arresto Menor
Ok. Thank you for the help.

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15 Re: Constructive Dismissal on Wed Jan 04, 2017 11:26 am

tike_castro


Arresto Menor
Good morning!

Let me greet you first a Happy Holidays to you and the staff or pinoylawyer.org! Thank you for supporting all the concerns and questions we have. I hope that all the staff of this website never stop from giving free legal advice to ur supporters.

Let me ask if i am technically in "floating status" because of my case, at the end of my 6-month, I am legally eligible for a separation pay? Am I correct? I hope that you can assist me on this. Thank you!

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16 Re: Constructive Dismissal on Wed Jan 04, 2017 1:40 pm

lukekyle


Reclusion Perpetua
yes 6 months after you have informed them that you are fit to work, they will either have to let you resume work or give you separation pay.

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CallCenterBud


Arresto Menor
Hi -

Have had a rough start in my current organization because of people related issues that affected how the organization perceived me professionally. Some personalities holding senior positions in the organization have been trying to take me out but have miserably failed because I am able to perform and deliver. Just this week, my interim manager advised me that because certain perception issues still exist that prevents me from growing in the company that we needed to cut our losses from both ends. He said that we have two options to explore: (1) an exit package or (2) performance management/termination if I do not agree with the first option.

Have met all my performance metrics in fact I have exceeded my goals for 2016. However, certain personalities who have strong influence in the organization wants me out and ASAP.

Can an employer terminate me because of perception issues and for the reason that they do not see me growing with the organization? Can they invoke loss of trust because of these perception issues that they so vaguely discussed with me? I am no expert at law but I think this is a clear case of contructive dismissal.

Please provide guidance on how should I handle this situation. Appreciate the help!

Thanks,

CallCenterBud

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18 Re: Constructive Dismissal on Sun Jan 08, 2017 8:33 pm

lukekyle


Reclusion Perpetua
nope they cannot terminate you for those reasons. they need a specific incident to cite for loss of confidence. meron project na pinagawa which you did not do or merong gamit na nawala under your responsibility or something similar.

no this is not constructive dismissal. constructive dismissal is when they ask a manager to clean the toilet as part of his daily activities or move you to night shift when there are no other employees on night shift. it is not the company's responsibility to provide you opportunities for advancement. nag offer lang sila dahil ayaw nila sayo. thats not illegal. its only illegal when they force you out. like the termination that they threatened you with. you can only complain once they have terminated you. until then i eould suggest you wait it out. or if you want explore their exit package. it may be generous enough that it would be worth your while

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19 Re: Constructive Dismissal on Sun Jan 08, 2017 8:48 pm

CallCenterBud


Arresto Menor
Thanks for the response, Lukekyle. Appreciatr it!

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20 Re: Constructive Dismissal on Sat Jan 21, 2017 10:03 am

tike_castro


Arresto Menor
Good morning pinoylawyer.org!

Question po...if the HR has not given an answer when you asked them:
"I want to know when my "floating status" started. Was it when I submitted my fit to work clearance from my physicians (November 1, 2010), or when I first followed up on my status (November 16, 2016)? I still have not been informed until this very moment of the actions I must take in preparation for return to work"

but doesn't give a specific answer, what actions can I do? It has been 3 months now.

I hope you can assist with this. Thank u!

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21 Re: Constructive Dismissal on Sat Jan 21, 2017 10:20 am

lukekyle


Reclusion Perpetua
Though the company's stand may differ, to be conservative, peg the date when you first had something regarding your status received or acknowledged.
Constantly followup lang and make sure your followups are documented. After 3 more months you can officially ask to be either reinstated or receive separation pay

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