1.
NOT ENTITLED TO SEPARATION PAY
separation pay may be awarded only when the termination of employment is
due to installation of labor-saving devices, redundancy, retrenchment, closing
or cessation of business operations, disease of an employee and his continued
employment is prejudicial to himself or his co-employees, or when an
employee is illegally dismissed but reinstatement is no longer feasible
(Hanford Philippines Inc. and Victor Te vs Shirley Joseph, GR 158251,
March 31, 2005, Ponente: Associate Justice Angelina Sandoval Gutierrez).
Resignation is defined as the voluntary act of an employee who finds himself in a situation
where he believes that personal reasons cannot be sacrificed in favor of the exigency of the
service and he has no other choice but to disassociate himself from his employment.
Thus, the elementary rule is that an employee who voluntarily resigns from employment is
not entitled to separation pay, except when it is stipulated in the employment contract or
Collective Bargaining Agreement or based on established employer practice in the company
(Del Rio vs DPO Philippines Inc. et al. (GR 211525, Dec. 10, 2018))
2. RE ENTITLEMENT TO 13TH MONTH
REVISED GUIDELINES
ON THE IMPLEMENTATION OF THE 13TH MONTH PAY LAW.
Memorandum Order No. 28
all rank and file employees are now entitled to a 13th month pay regardless of the
amount of basic salary that they receive in a month if their employers are not
otherwise exempted from the application of P.D. No. 851. Such employees are
entitled to the benefit regardless of their designation or employment status, and
irrespective of the method by which their wages are paid, provided that they have
worked for at least one (1) month during a calendar year.
3. Who are Rank-and File Employees.
The Labor Code distinguishes a rank-and-file employee from a managerial
employee. It provides that a managerial employee is one who is vested with
powers of prerogatives to lay down and execute management policies and/or to
hire, transfer, suspend, lay-off, recall discharge, assign or discipline employees, or
to effectively recommend such managerial actions. All employees not falling within
this definition are considered rank-and-file employees.
The above distinction shall be used as guide for the purpose of determining who
are rank-and-file employees entitled to the mandated 13th month pay.
The following employers are exempted from paying 13 th month pay under SEC 3 OF PD
851:
a) The government and any of its political subdivisions, including government-owned
and controlled corporations, except those corporations operating essentially as private
subsidiaries of the Government;
b) Employers who are already paying their employees 13 th month pay or more in a
calendar year or its equivalent at the time of the issuance of PD 851;
c) Employers of persons in the personal service of another in relation to such workers;
and
d) Employers of those who are paid on purely commission, boundary, or task basis,
and those who are paid a fixed amount for performing specific work, irrespective of the
time consumed in the performance thereof, except those workers who are paid on
piece-rate basis, in which case the employer shall grant such workers the required
13th month pay.
As used herein, workers paid on piece-rate basis shall refer to those who are paid
a standard amount for every piece or unit of work produced that is more or less
regularly replicated, without regard to the time spent in producing the same.
6. 13th Month Pay of Resigned or Separated Employee.
An employee who has resigned or whose services were terminated at any time
before the time for payment of the 13th month pay is entitled to this monetary
benefit in proportion to the length of time he worked during the year, reckoned
from the time he started working during the calendar year up to the time of his
resignation or termination from the service. Thus, if he worked only from January
up to September his proportionate 13th month pay should be equivalent of 1/12
his total basic salary he earned during that period.
The payment of the 13th month pay may be demanded by the employee upon the
cessation of employer-employee relationship. This is consistent with the principle
of equity that as the employer can require the employee to clear himself of all
liabilities and property accountability, so can the employee demand the payment
of all benefits due him upon the termination of the relationship.
PD 442
Article 87. Overtime work. Work may be performed beyond eight (8) hours a day provided that the
employee is paid for the overtime work, an additional compensation equivalent to his regular wage
plus at least twenty-five percent (25%) thereof. Work performed beyond eight hours on a holiday or
rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a
holiday or rest day plus at least thirty percent (30%) thereof.
3. NOT ENTITLED TO OVERTIME PAY (SEE PAR 5 OF EMPLOYEES EXCEMPTED FROM
BENEFIT)
DOLE-Bureau of Working Conditions: HANDBOOK ON WORKER’S STATUTORY MONETARY
BENEFITS
This benefit applies to all employees except:
1. Government employees, whether employed by the National Government or any of its
political subdivisions, including those employed in government-owned and/or controlled
corporations with original charters or created under special laws;
2. Managerial employees, if they meet all of the following conditions:
2.1 Their primary duty is to manage the establishment in which they are
employed or of a department or subdivision thereof;
2.2 They customarily and regularly direct the work of two or more employees
therein;
2.3 They have the authority to hire or fire other employees of lower rank; or
their suggestions and recommendations as to hiring, firing, and promotion, or
any other change of status of other employees are given particular weight.
3. Officers or members of a managerial staff, if they perform the following duties and
responsibilities:
3.1 Primarily perform work directly related to management policies of their
employer;
3.2 Customarily and regularly exercise independent judgment;
3.3 (a) Regularly and directly managerial employee in assist a the discretion and
management proprietor or of the establishment or subdivision thereof in which
he or she is employed; or (b) execute, under general supervision, work along
special 22 specialized or technical lines requiring training, experience, or
knowledge; or (c) execute, under general assignments and tasks; and
3.4 Do not devote more than twenty percent (20%) of their hours worked in a
workweek to activities which are not directly and closely related to the
performance of the work described in paragraphs 3.1, 3.2, and 3.3 above.
4. Househelpers and persons in the personal service of another;
5. Workers who are paid by results, including those who are paid on piece rate, takay,
pakyaw, or task basis, and other non-time work, if their output rates are in accordance with the
standards prescribed in the regulations, or where such rates have been fixed by the Secretary of
Labor and Employment;
6. Field personnel, if they regularly perform their duties away from the principal or branch
office or place of business of the employer and whose actual hours of work in the field cannot
be determined with reasonable certainty.