Early retirement

Dear Atty. Vlad,

I am a waiter at a restaurant in Quezon City where I have been working for 20 years now. I turned 60 a month ago. My manager told me that since I am already 60, I am already retired and as such, I don’t have to go to work anymore. Please give me advice since I still need to work.

Rod

***

Dear Rod,

Republic Act 7641, known as the Retirement Age Law, provides the following:

“SECTION 1. Article 287 of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines, is hereby amended to read as follows: Art. 287. Retirement. — Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract.”

“In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of 60 years or more, but not beyond 65 years which is hereby declared the compulsory retirement age, who has served at least five years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six months being considered as one whole year.”

From the foregoing provisions, an employee who has reached the age of 60 years but not more than 65 years, and who has served for at least five years in the establishment, may retire. This means that the option to retire is given to the employee and not to the company. The exception to this is when there is a retirement plan or agreement (like an employment contract duly signed by the employer and the employee). In such a case, the retirement age in the retirement plan or agreement will be followed.

In your case, there was no mention of any retirement plan or agreement with your employer. As such, your employer cannot force you to retire at the age of 60 in the absence of any retirement plan or agreement. Forcing you to retire before 65 years is equivalent to dismissal without just or authorized cause, in which case, you may file a claim for illegal dismissal before the National Labor Relations Commission.

I hope that I was able to help you based on the facts you shared.

Atty. Vlad del Rosario


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