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Possible Breach of Contract

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1 Possible Breach of Contract on Thu Sep 08, 2011 12:47 pm

bulotz


Arresto Menor
Good Day! On Nov 2005 I was hired as a call center agent. I signed the usual call center worker contract. I'm working as Customer Service Representative and my main responsibility is to handle customer's call and resolve whatever issues they have. On top of my basic salary, I also receive benefits like sales commission and bonuses depending on how I perform on a given month(there are metrics that I need to meet to qualify for such benefits). Sometime on November/December of 2007 I was assigned as a "floor walker/team lead" wherein I assist learning lab supervisors. I did not sign any contract because there is no promotion involved according to the company. I accepted the assignment because I was given task to assist supervisors for four hours and do phone time for another four hours which is favorable to me because I can still get the benefits I am receiving when I am doing phone time for 8 hours (of course I need to meet the metrics). On March of 2008, I was informed that "floor walk/team lead" project will be dissolved I need to go back to 8 hour phone time. Again I accepted because I was told that since there is no promotion that took place, I was still a regular agent. Although I felt something is not right, I obeyed because I need a job. On July 2009, I was informed that there is a new project and together with 4 more agents I was selected based on our good performance. We were told that we will be assisting in "application testing". Again, we were told that it is not a promotion because we will only be assisting in the said project for 6 hours and will still be doing 2 hours of phone time. We told them that doing phone time for 2 hours is not enough for us to meet the requirements for us to still get our benefits (sales, IR bonus). They told us that they will work on that and one possible solution is for us to possibly extend our phone time to meet the daily number of calls requirements or to give us a totally separate incentives. We agreed because we look forward that everything will be OK. There are months that we're able to receive commissions and bonuses but it is not consistent because most of the times we can't meet the required number of calls because of some changes. We never heard anything about the promised solutions we previously discussed. On December of 2009 another 5 members were added making 10 of us in the group. Our supervisor was also replaced. It is during this times that we talked to our supervisor of our requests. She said she will do something but until now there is no positive results. There are even times that she will tell us that we should be thankful that we belong to the said project and told us that since we don't have any contract on the said project, they can always replace us anytime they wanted. There was an incident that one of my previous co worker mentioned to me that she was also doing exactly the same thing that we're doing and she told me that they have a different contract/job decriptions and is receiving a much higher salary considering that the job itself is totally different from that of a regular agent. I personally felt that I am taken advantaged by my company because until now my salary did not increase and worst of all I can no longer get the rest of the benefits because we are no longer doing phone time at all. We are doing testing for 8 hours for almost 2-3 months now and whenever we request for overtime to do phone time we are told that overtime is not allowed for us. Last month another 2 agents were added to our group and this month another 10 were added making us a total of 22 in the group. Do you think there's a breach of contract on the part of our company since we are no longer doing phone time? I really felt that there is a violation somewhere. We can't push them to give us a different job description because they will just tell us that we are still regular agents and they can replace us anytime they wanted. Please help me. I am thinking of going directly to DOLE but I got a chance to see your website and I would really appreciate any information/advise you can give me. Thank you!

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2 Re: Possible Breach of Contract on Thu Sep 08, 2011 5:55 pm

attyLLL


moderator
first, it's not correct to say you can be replaced anytime. it is because you don't have a contract that you can say that you are now a regular employee.

it's been a long time since you were transferred. if you can show what you used to earn has substantially decreased, then you can argue that they violated the rule on non-diminution of salary.


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3 Salary Retro Pay on Fri Sep 23, 2011 12:44 am

Mathew


Arresto Menor
Good Day Atty,

I was hired last 2007 as an operator. On July 1, 2009 I was under cadetship agreement for 3months as Team Lead. The agreement states that I undergo the cadetship program of the company to last for 90days as an on-the-job trainee as TL cadet. The cadet's performance will be evaluated in writing by the Hiring Manager on the 30th, 60th and 90th day of the program, it maybe ended as early as on the 60th if the cadet demonstrates fitness in assuming the position. Upon successful completion of the Cadetship program the employee job title will be officially changed to that of the position along with the duties and respobsilities and privileges it entails. For the duration of the cadetship program, the employee will received an additional allowance of Php4,200 every month. The amount of which is 30% percent of the approved salary for Team Lead which the employee should received if the employee successfully passes the cadetship program.

I have completed the program. Afte the 90day program my salary didn't changed and the 4,200 allowance was stopped. I continued to work as TL since then. The company said we are having salary freeze. The allowance was returned after 3payperiod, they are giving us back the allowance since they can't give the full amount of a Team lead's salary. When the freeze was lifted, we were given the full amount on March 2011 retro active since Sept 2010. Our question is : Can we demand from the company that they retro pay us from Oct 2009 to August 2010? It was clearly stated in the cadetship agreement that we'll be getting the full amount once we pass the cadetship program.

Thank you,

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4 Re: Possible Breach of Contract on Fri Sep 23, 2011 10:34 pm

attyLLL


moderator
i believe you arguably can, but if the company refuses, your remedy will be to file a complaint at nlrc


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5 Re: Possible Breach of Contract on Sat Sep 24, 2011 1:01 am

Mathew


Arresto Menor
another thing atty, I also have officemates that have been promoted internally as TL but they were not given any documents, salary was not changed to TL(they continue to receive minimum wage) as they kept saying that they are still awaiting approval from snr. management yet when they hire TL externally they gave the full amount to the later. Some of them are almost a year waiting to get the full salary and having worries that they will not be getting retro pay from day1 they assume as TL since they didn't sign any documents.

What legal move they should they take? Can this be considered unfair labor practice?

Thank you attorney for all the help.

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6 Re: Possible Breach of Contract on Sat Sep 24, 2011 12:10 pm

attyLLL


moderator
what you can do is to write a letter to management


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7 Re: Possible Breach of Contract on Sun Nov 20, 2011 10:34 pm

rpreyes


Arresto Menor
Hello Atty,

My husband is in sales for almost 2 yrs now and has been a consistent performer and have been receiving incentives for quota achievement, which the company regularly remits thru their atm every 20th day of the month. For the year 2011, he is already in his year-to-date annual quota achievement.

Recently, just a few months back, the whole sales team was asked to sign a company memo stating that 2days of absences a month will be a cause for the non-issuance of the incentive.

Last Oct 2011, we were both forced to take a leave of absence because 2 of our kids got hospitalized in just a 1 week interval. One of which was so serious that our Barangay Paramedics helped out to bring our 8-yr old son to the hospital because he was having tachycardia (my son has a heart condition). So as a result, my husband had a leave of more than 2 days. Nevertheless, everytime he will take a leave, he would ask approval from his immediate superior, which in turn was given.

The week that his incentive would be released, he asked the CS Supervisor if their incentive would be released by Friday/ Nov. 19 since Nov. 20 would fall on a Saturday. She said that she will check. No one from the Management nor the Finance dept told him that his incentive will be put on hold because of his absences.

When he spoke to his Sales Director, the Sales Director confirmed that his Nov. incentive was put on hold because of his absences and that he would receive it by December.

Does this fall under Non-Diminution of Benefits? The leaves of my husband was emergency in case and was approved by his immediate superior but still they had put on hold his incentive. Also, they never considered that he is a sales performer. He ranked 3rd in their company's overall performance.

Pls advise.

Thanks
rpreyes

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8 Re: Possible Breach of Contract on Wed Nov 23, 2011 1:59 am

attyLLL


moderator
no, but it's an unreasonable enforcement of the policy if they refuse completely. a delay can be warranted if it's released by december.


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