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I want to Claim my commission and illegal deduction of wages

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melrich


Arresto Menor

Good day,

Im a Sales and Marketing Executive sa isang company. since 2015 up to march 2017. ( pre-terminate dahil nalaman nilang pina dole ko sila, and it is their intension talaga dahil hindi na ko halos nagbebenta ngayon cycle na september 2016-june 2017. because we sell textbooks sa mga private school. april ang orderan ng school.

may question is.

1. I was requesting for advance commission of 3% from Cleared payment only which is 77% cleared payment is P4,120,000 ( p135,000 less tax). entitle po ba ako dito? pero ang offer nila sa last hearing namin sa dole ay P7,000???? from 2015 na trabaho at 8 Million na benta. wala ako utang sa company.

2. legal po ba na kaltasan ang ahente ng 50% from salary dahil may overdue account ang client ko?

3. legal din po ba na wala kaming govt benefits since 2015. kung kami ang produce ng Sales, Delivery ng books, at nagko collect sa mga school?

4. Tama ba na tawagin kaming Independent Agent sa harap ng dole ng company kung ang
ID namin at lahat ng report ay naka title na Sales and Marketing Executive kami? we report daily.. we report our accomplishment at the end of the day. monday-friday. we report from 8am-6pm at the office during saturday.

Thank you in advance.

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lukekyle


Reclusion Perpetua
1# to 3# legal lahat yan kung nakasulat sa contract mo.
4# how is your salary scheme? do u get paid daily? meron bang nawawala if di ka pumasok on certain days?

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melrich


Arresto Menor
Thank you.
Wala po kaming contract na pinirmahan. Lahat is verbal lang na sinabi sa amin.

No. 4... every 15th and 30th sahod. Without payslip. R
Received lang po

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lukekyle


Reclusion Perpetua
nope ang tanong eh may sweldo ba kung pumasok or commission lang? May bawas ba pag absent?

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melrich


Arresto Menor
May bawas ang sahod pag absent. And need magbigay ng med certificate. Pag sinabing may sakit.
Ang main concern ko po is makuha ang 3% commission from cleared payment. Kahit ano po ba ang mangyari. Entitle ba kami makuha un. Kahit wal kami hawak na contract?

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mrs_scofield


Prision Correccional
ON THE ISSUE OF SALES COMMISSION

Yes, you are entitled to your sales commission from every transaction you closed.  When you said "wala kami hawak na contract", did you mean you did not sign any employment contract with your company or you have signed one but you don't have a copy? Typically, rules on commissions are contained in the employment contract or if there's none, they are specified in the engagement letter.

If you don't have any, do you still have a copy of your salary slips from the time you started working with the company? Look for the particulars on commissions. The salary or payslips normally contain enumerations of the salaries earned, deductions, taxes, fringe benefits, and yes commissions. So even if you don't have any contract specifying that you are entitled to commissions, your payslips will show otherwise.  These payslips will prove that you are receiving the agreed commissions for every transaction closed since the time you started working with the company.

As to request for advance commission, you need to prove that this policy has been allowed for the longest time and has been granted consistently and deliberately that it had now ripened into a company practice hence cannot be preemptorily withdrawn. Once it became a company practice and has been enjoyed by the employees for the longest time, it can no longer be reduced, diminished, discontinued, or eliminated by the employer. This is in consonance with the principle of non-diminution of benefits.

This principle is founded on the Constitutional mandate to “protect the rights of workers and promote their welfare,” and “to afford labor full protection.” Said mandate in turn is the basis of Article 4 of the Labor Code which states that “all doubts in the implementation and interpretation of this Code, including its implementing rules and regulations shall be rendered in favor of labor.

ON THE ISSUE OF INDEPENDENT AGENT (CONTRACTOR)

It is significant to note that an employer- employee relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services not only as to the result to be accomplished by the work, but also as to the details and means by which that result is accomplished. In this connection, it is not necessary that the employer actually directs or controls the manner in which the services are performed; it is sufficient that he has the right to do so. The right to discharge is also an important factor that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in very case, are furnishing the tools and furnishing of a place of work to the individual who performs the services.

Who contrrols the manner in which your services are performed? Are you required to observe company rules and regulations like observance of 8 hours of work, break time hours? Lunch break? Leaves? If the answer to this questions is YES, then you are not an independent agent/contractor but an employee of the company.

Who pays for your SSS contributions? Pag-ibig? Philhealth? Medical insurance? If the answer to this questions is the COMPANY where you work, then you are not an independent agent/contractor but an employee of the company.

WITH REGARDS TO DEDUCTION ON SALARIES OF 50% REPRESENTING UNPAID SUBSCRIPTION BY CUSTOMERS

NO, an employer cannot deduct from the salaries of employees the unpaid account of its customers handled by the employee.  This is an illegal deduction unless you consented to such.  An employee who handles the account of the defaulting customers should not be made liable for the latter's unpaid account. The employee is not the debtor but the customer, hence, there is no legal basis for the employer to deduct the unpaid account of the customer to the employee's salaries.

ON THE ISSUE OF TERMINATION

What do you mean when you said you were pre-terminated? An employee, whether casual, regular, or probationary can be terminated only for just and authorized causes.

Are you an employee with a definite period or a Project employee? Meaning, you are hired for a specific period only or until the project is completed and this was made known to you before you were engaged? These are the only situations where an employee may be pre-terminated or terminated before the expiration of his contract.

If you are not, then terminating your services based on the ground that you reported the company with the DOLE is NOT a valid and just ground. There is illegal dismissal when an employee is dismissed without just and authorized cause.

I hope this helps. God bless you and good luck!



Last edited by mrs_scofield on Fri Mar 24, 2017 10:16 pm; edited 1 time in total (Reason for editing : Grammar, spelling)

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melrich


Arresto Menor
Thank you for helping us learn about our rights as an employee. I will just answer some of your question.
1. We started as sales and marketing executive last Aug.2015. We dont sign any contract. But verbally said we have a 15k salary and 3% commission. Last june 30. 4 of my collegues were terminated. Effective july 1. Wala na silang work. So ung mga areas na tinangalan ng agent. Ako nag cover. NCR areas.
They told me im lucky because i passed. And pla ninh to give govt benefits and increase salary since 9 na areas na hawak ko. Pero pagdating ng september 2016. Walang nabago. Pina sign kami ng contract na until now wala kaming hawak.
And monthly na lang ang dami nila nilalatag na memo na pag naka 15 memo daw kami pataas may kaltas
Kami na .5% sa comm. At overdue 50% kaltas. Ung returned textbooks ng school charge sa amin ng 10%.

2. Hindi talaga nila kami hinuhulugan ng sss.pag-ibig.
3. We work on field..mon-fri 8am mag viber ng attendance. 5pm viber picture report daily. Sat wholeday report sa office.

4. Ang cycle namin is from september-july 30. Pero last march 13. Kinuha na nila mga supposedly mga proposal ko sa mga school. It means hindi na nila ipapa trabaho saken. Hindi rin nila pinirmahan mobilization allowance ko for that week na march 13-18. Sabi nila tatawagan na lang daw nila ako kinabukasan. Pero di sya tumawag. Pero nag field work pa rin ako until friday.. then saturday sabi saken ng accounting. Aalis na ba daw ako. Un daw sabi sa kanila sa office. It means gusto na nila ako tangalin?
Thank you so much for your time. We really appreciates your help.

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melrich


Arresto Menor
We dont have payslip since 2015 to 2016. January 2017 atm lang
Pero wala pa rin payslip.

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mrs_scofield


Prision Correccional
Upon reading my earlier reply to your question, I found a typographical error. To correct, reporting the company to DOLE is NOT, I repeat NOT a valid and just cause for termination.  Hence, if you are terminated on account of this then you are illegally dismissed.

You mentioned you have company IDs and documents showing that your position in the company is Sales and Marketing Executive, have the same photocopied and keep them. You also mentioned that you submit accomplishment reports and send viber pictures report everyday, screen shot the exchange of viber messages and save the same, you will be needing this in case you decide to file a complaint for illegal dismissal, illegal deduction, non-payment of benefits, etc. with the National Labor Relations Commission (NLRC).

Can you remember the contract you were made to sign? What is the title of the document? I hope you were not made to sign a Trust Receipt. A Trust Receipt is a commercial document wherein a corporation or a person entrust to another (known as the Entrustee) goods for sale with the expectation that when sold, the Entrustee is required to turnover the proceeds thereof to the Entruster and in case the same is not sold, the Entrustee is required to return the goods to the Entruster. Violation of the conditions of Trust Receipt is a criminal case. One may be charged with Estafa. So it is very important that you recall the document you were made to sign.

If it is a Contract of Agency, the company may use this to deny your claim that you are its employee.  However, you can't still be held liable for the unpaid account of the customer. Art. 1897 of the Civil Code provides that:

"The agent who acts as such is not personally liable to the party with whom he contracts, unless he expressly binds himself or exceeds the limits of his authority without giving such party sufficient notice of his powers."

But you can still claim that you are an employee and not an agent of the principal (the company) by providing the company IDs, documents showing your position in the company, your viber picture report, salaries received from the company thru ATMs, etc. showing that the company directs or control not only the result to be accomplished but also the means by which that result is achieved.

What happened to your complaint with the DOLE?

I'll cover other details of your concerned on my next post. Let's call it a night.

Good luck again and God bless

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melrich


Arresto Menor
Thank you so much Mam for giving attention to our concern.
I filed a complaint in dole march 13 after na ipatawag ako sa office at kuhain mga gamit ko at hindi pirmahan mobilizstion ko for the week of march 13-17. Kasi parang na sense ko na ang gagawin nila. Uulitin nila ang ginawa sa 4 kong kasama na force termination.
March 17 hindi sila umattend. March 18 sinabi saken ng acctg na hindi na ko kasama sa itenerary.
March 21 ummattend sila. ANG COMPLAINT KO ILLEGAL DEDUCTION OF WAGES AND NON PAYMENT OF COMMISSION FROM PREVIOUS SALES NA 8M FROM SINCE APRIL 2016.
instead po na magbigay ng commission kahit 20k po sana. Then ung balance pag usapan na lang. Pero hindi ganun ginawa nila. Ang sabi nya 7k na lang daw makukuha ko kc sa unliquidated mobilization at mga deductions. Wala po ako utang sa company dahil hindi po mari released ang allowance the following kung hindi namin liquidate ang previous week na report. At lahat po ng return books ng school is na balik ko na sa warehaus june-aug 2016.
Kaya di ako pumayag sa offer. Kaya tuloy ko nlrc. April 5 po hearing namin. Kc talagang mula january 2017 up to march hirap po kami ng pamilya ko sa 9k monthly na lng na sweldo dahil sa mga illegal deductions nila. May 6k rent ako na nid ko mag transfer from pasig to paranaque dahil ang pina covet nila saken is paranaque. Las pinas. Muntinlipa. Manila. Makati. Pasay. Mandaluyong
San Juan. Kaya sana Mam Manalo po ako sa kaso. Makuha ko lang ang 3% comm at ibalik ang binawas na 6k monthly.
Salamat Mam sa patuloy nyong pag advise.

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mrs_scofield


Prision Correccional
That's good to know. If its a consolation, under the policy of social justice, the law bends backwards tonaccommodate the interest of the working class on the humane justification that those with less privileges in life should have more in law. In case of conflict between social justice and property rights, attenpt must be made to reconcile one with the other; but in case reconciliation is not possible, property rights must yield to human rights.

Good luck on your hearing on April 5. You may want also to lodge a complaint with SSS, Philhealth, and Pag-ibig against the company for its failure to pay membership premiums. Just stand on your ground that you are an employee of the corporation.

God bless!!!

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melrich


Arresto Menor
Thank you mam. Last question na lang po namin mam.
Ano po ba ang pananagutan or consequences sa labor ng kumpanyang nireklamo ng employee kapag hindi sila nakipag settle?
May ma recommend po ba kayo na private lawyer?
Thank you Mam and God bless you

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mrs_scofield


Prision Correccional
The employer is not obligated under the law to amicably settle or enter into any compromise agreement or whoever for that matter; it's a voluntary act. In case both parties fail to arrive at an amicable settlement, the labor case will push through. You will be both required to submit your respective position paper/memorandum with the supporting documents and affidavits within 15 days from the date of last conference with proof of having furnished each other with copies thereof.

As soon as the parties have submitted their position papers/memorandum, the Labor Arbiter shall, motu propio (on its own), determine whether there is a need for a formal trial or hearing. The Labor Arbiter may, at his discretion, ask clarificatory questions to further elicit facts or information, including but not limited to the subpoena of relevant documentary evidence from any party or witness.

The Arbiter shall render his decision within thirty (30) calendar days, without extension, after the submission of the case by the parties for resolution, even in the absence of stenographic notes.

Should the Labor Arbiter finds for the complainant and granted his money claims, that's the time the employer shall be held liable unless it will appeal the assailed decision. Order of reinstatement, however, shall be immediately executory and cannot be suspended by the expedient act of filing an appeal.

Visit the Public Attorney's Office in your place and inquire if you qualify to receive free legal assistance.

Good luck!

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melrich


Arresto Menor
Thank you. I understand it clearly now.
I just really pray that my previous company will pay our commission. Nothing else.
Thank you so much and God bless you

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