Separation pay

Dear Atty. Kathy,

I have an ongoing illegal dismissal case against my former Company X. It has been eight years since my last day in Company X. I am worried that my case will be dismissed because when I spoke with another lawyer, she said that I was not dismissed in any way and that I will probably just be ordered to go back to Company X. I do not want to go back to work at Company X anymore because I learned that the same people who caused me so much stress are still working there. Is it possible to get separation pay instead even if I was not dismissed?

Reese

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Dear Reese,

As a general rule, when there is no dismissal, the Court merely declares that the employee may go back to his work and the employer must then accept him because the employment relationship between them was never actually severed.

The Supreme Court, however, has ruled in some cases that instead of ordering the employee to return the work, the payment of separation pay may be granted even if there was no dismissal. In said cases, the Court directed the payment of separation pay even if it found that no dismissal took place, considering that at least more than 7 to 10 years had already passed since the employee stopped reporting for work, and also considering that the employee no longer had any place in the business due to reduced workforce.

Based solely on your narration, eight years had passed since you last reported for work in Company X. Thus, based on Supreme Court cases or jurisprudence, the Court may deem it just to award separation pay instead of directing you to report for work at Company X and for Company X to accept you. In such case, separation pay will be computed at one month salary per year of service, computed up to the time you stopped working.

(GIL SAMBU JARABELO vs HOUSEHOLD GOODS PATRONS INC., et al., G.R. No. 223163, 2 December 2020)

Atty. Kathy Larios