Security of tenure

Dear Atty. Kathy,

My mother wants to file a case for illegal dismissal against her employer so she can go back to her former job. My mother is already 64 years old and she is worried that the case might take a long time to finish, and she will not be able to go back to work if she is already older than 65, which is the compulsory age of retirement. What other monetary claims can my mother make against her employer?

Mina

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Dear Mina,

As an employee, your mother has the right to security of tenure, as provided for in the Constitution and in Article 294 of the Labor Code, which states:

Art. 294. Security of tenure. — In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

Based on the above, an illegally dismissed employee shall be entitled to full backwages, inclusive of allowances and other benefits, computed from the time the employee’s actual compensation was withheld from the employee up to the time of the employee’s actual reinstatement. However, if reinstatement is no longer possible, the backwages shall be computed from the time of their illegal termination up to the finality of the decision. In addition, separation pay may be awarded in lieu of reinstatement when reinstatement can no longer be effected in view of the long passage of time or because of the realities of the situation.

In your mother’s case, if reinstatement is no longer possible when she becomes 65 years old, the statutory compulsory retirement age, she may be entitled to separation pay in lieu of reinstatement. The computation of your mother’s backwages shall then be from the time of your mother’s illegal dismissal up to her compulsory retirement age.

Your mother may also be entitled to the award of moral and exemplary damages. However, it is not enough that your mother was dismissed without just or authorized cause and due process. An illegal dismissal, does not, by itself, establish bad faith to automatically entitle your mother to moral and exemplary damages. To be entitled to such damages, there must be proof of a dishonest purpose or conscious doing of wrong on the part of your mother’s employer in the illegal dismissal of your mother.

Moreover, for having been compelled to litigate, your mother may be entitled to reasonable attorney’s fees at the rate of ten percent (10 percent) of the total monetary award pursuant to Article 2208(2) of the Civil Code.

(Edna Luisa B. Simon versus The Results Companies, et al., G.R. No. 249351-52, 29 March 2022).

Atty. Kathy Larios