Prescription determined by date of last written demand for benefits

Dear PAO,
My boyfriend was employed as a private company driver. He had family problems, which greatly affected his work. He unintentionally incurred absences, which later resulted in his termination in February 2012. He accepted the termination but he wanted to insist on the payment of his last salary and other monetary benefits. He tried to demand from his former employer, but all his efforts were in vain.

Can he still legally demand his benefits now? He is contemplating on filing a case, but he is not sure if he can still do it considering that several years have already passed. Your advice will be highly appreciated.
Triza

Dear Triza,
An employee who has rendered service in favor of his employer, in compliance with the provisions of their employment contract, is entitled to receive the adequate salary or compensation as agreed upon by them. They have the right to demand the same once it becomes due. And if there is unjust refusal on the part of the employer to pay such salary or compensation, the employee concerned may bring the necessary legal actions.

You mentioned in your letter that your boyfriend was terminated in February 2012 and, while he accepted his termination, he demanded from his former employer to pay him his last salary and such other monetary benefits that may have accrued in his favor. Such demands were not met by his former employer, however. Thus, he considers filing a case against the latter.

We wish to emphasize that the filing of monetary claims must be done within the three-year prescriptive period provided for under Article 291 of our Labor Code. To be specific, the law states:

“All money claims arising from employer-employee relations accruing from the effectivity of this code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred. x x x”

Accordingly, your boyfriend must institute his monetary claims within three (3) years from the time the same has accrued. But the common question is: When do monetary claims start to accrue? As explained by the Supreme Court:

“x x x The Labor Code has no specific provision on when a claim for illegal dismissal or a monetary claim accrues. Thus, the general law on prescription applies. Article 1150 of the Civil Code states:

Article 1150. The time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought. (Emphasis supplied)

The day the action may be brought is the day a claim starts as a legal possibility. In the present case, January 1, 2000 was the date that respondent Pingol was not allowed to perform his usual and regular job as a maintenance technician. x x x”(PLDT vs. Pingol,G.R. No. 182622, September 8, 2010)

Accordingly, the three-year period when your boyfriend may file his claims began to run on the date of his termination in February 2012, ending three (3) years thereafter.

It bears stressing, however, that the running of the three-year prescriptive period may be interrupted by the filing of an action in court, by a written extra-judicial demand, and by a written acknowledgment of the debt by the debtor (Article 1155, Civil Code; PLDT vs. Pingol, Ibid.)

Thus, if your boyfriend has made written demands after February 2012, this may have taken its toll on the running of the three-year prescriptive period. The counting of the period will be continued from the date of his last written extra-judicial demand. Correspondingly, he may still file his claim before the Department of Labor and Employment if the total period that has lapsed is still within the three-year prescriptive period.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Examining the proposed extended maternity leave

In January 2016, the Senate approved Senate Bill No. 2981 (SB 2981) or the Expanded Maternity Leave Law of 2015 on its third and final reading. Under the bill, the duration of maternity leave for female employees in government service and in the private sector will be extended to one hundred (100) days, regardless of mode of delivery. Mothers around the country have lauded the bill yet some have expressed fears on the repercussions of the same.

At present, the maternity leave provided under the Section 14-A of Republic Act 1161, as amended, otherwise known as the Social Security Act of 1997, provides that a female employee shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her average daily salary credit for sixty (60) days or seventy-eight (78) days in case of caesarian delivery.

It should be noted that the International Labour Organization (ILO), specifically the Maternity Protection Convention (Convention 183) prescribes for fourteen (14) weeks or ninety-eight (98) days of maternity benefits. Evidently, the maternity leave provided for in our country is less than the minimum provided under Convention 183.

Comparing with the other ASEAN countries, the Philippines is one of the countries with the least number of maternity leaves granted. Vietnam is the highest granting about one hundred twenty (120) to one hundred eighty (180) days of maternity leave, while Singapore, provides one hundred and twelve (112) days of maternity leave. Cambodia, Indonesia, Laos, Myanmar, and Thailand all provide a maternity leave period of ninety (90) days. Only Malaysia and Brunei provide for a sixty (60) day maternity leave similar to the Philippines.

Aside from extending the maternity leave to one hundred (100) days regardless of mode of delivery, the bill also provides for an additional maternity leave of thirty (30) days without pay provided that due notice, in writing, be given to the employer at least forty-five (45) days before the end of the maternity leave.

Moreover, the bill, in compliance with ILO Convention 183 provides that “employees availing of the maternity leave period and benefits must receive not less than two-thirds (2/3) of their regular monthly wages.” The bill also mandates that employers from the private sector shall be responsible to pay the salary differential between the actual cash benefits received from the SSS by the covered employees and their average weekly or regular wages, for the entire duration of the ordinary maternity leave.

The aim of the bill to provide for greater benefits for pregnant women is consistent with the mandate under our Constitution, particularly Article XIII Section 14, to “protect working women by providing safe and healthful working conditions, taking into account their maternal functions.”

And yet, it is unavoidable that some fear that the expanded maternity leave will in fact cause possible discrimination in terms of employment against women. These apprehensions are brought about by the idea that the employers, particularly small businesses, would feel burdened particularly since there is now a mandate that the employers will be responsible for the salary differential between the SSS grant and what is mandated under the bill.

Understandably, such fears are justified.

It may be worthy to point out, however, that to temper the added responsibility to employers, the bill exempts certain employers or establishments from the payment of the differential. Among them are distressed establishments, retail/service establishments employing not more than ten (10) employees, those who pay their workers on a purely commission or task-basis and micro-businesses or those whose total assets are not more than three (3) million pesos.

Moreover, it must be noted that the Labor Code of the Philippines provides for the protection of women employees against discrimination. Article 135 states that it shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. Discrimination may be in the form of lesser compensation to a female employee as against a male employee, for work of equal value, or in favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. Article 137, in addition, provides that it shall be unlawful to discharge a woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy. It is likewise unlawful to discharge or refuse the admission of a woman employee upon returning to her work for fear that she may again be pregnant.

Despite all these safeguards, it is still apt to recognize that there is, however, a risk that the discrimination may happen prior to being employed.

To avoid the additional costs, the employer may opt to give preferential treatment to male applicants. Such discrimination may be harder to perceive as employers are given the prerogative to set qualifications and standards by which to select their employees. Unless there is a blatant show of discrimination in the hiring of only or mostly male employees, it will be harder to draw the line between management prerogative and actual discrimination.

Hence, should the maternity leave in our country be increased to one hundred (100) days, our government is faced with the duty to ensure that the same will not cause discrimination against women in all stages of employment. Otherwise, the benefits envisioned may be outweighed by the harm.

The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion.

Kiarra Nastazsa Adrienne A. Cabile is an Associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).

(632) 830-8000

kacabile@accralaw.com.

source:  Businesworld

‘Stop abuses, not contractualization’

The complete elimination of employment through contractualization may have unforeseen negative consequences, according to two top local businessmen, who urged the government to instead focus on stopping abuses of the practice.

During a forum organized by the Economic Journalists Association of the Philippines (EJAP) and ING Bank on Tuesday, DMCI Holdings Inc., Chairman Isidro Consunji said it would be wrong to abolish contractualization as a whole, but rather the abuses associated with it.

“I think its inappropriate to eliminate contractualization per se,” Consunji said “I think that the issue there is in the abuses rather than the elimination of contractualization.”

Phinma Corp., Chairman and Chief Executive Officer Ramon del Rosario Jr., echoed Consunji’s sentiments, agreeing that it is the abuses associated with contractualization that should be condemned and not contractualization as a whole.

“It is fair to say that contractualization has been abused. And there are legitimate reasons to complain about those abuses,” Del Rosario said.

“But on the other hand, I think it is very dangerous to condemn contratualization as a general principle because there are sectors, industries in our economy that are offered on the basis of contracts,” and cannot operate on a non-contract basis, Del Rosario said.

Examples of these kinds of businesses are the construction and business process outsourcing industries, Del Rosario said.

“Construction is an example. Construction projects are always done by contracts. Of course if a project is done by contract, the bulk of the people employed are under a contract basis. I cannot envision how banning contractualization will work in the context of industries like construction, for example. Even business process outsourcing (BPO), many of the engagements are also done by contracts,” he explained.

Del Rosario stressed that in approaching the issue that there should be separation between contractualization and the abuses of it.

“There are many sectors of the economy wherein the only way you can hire people is through contracts. So let’s be very precise about what it is that we are against. I think it’s the abuses,” Del Rosario said.

The Phinma CEO expressed his hope that people are against the abuses of contractualization and not the general principle of it.

“I think when people say endo, it tends to connote the wrong principle of contractualization. What I hope they really mean are the abuses,” Del Rosario concluded.

source:  Manila Times