Ang Ahente ba Employee?

             “Employee” is any person in the employ of an employer as defined by the Labor Code.   The Social Security Law (R.A. No. 1161) gives more substantive meaning.  The latter defines “Employee” as any person who performs services for an employer in which either or both mental and physical efforts are used and who receives compensation for such services, where there is an employer-employee relationship.

            The sales agents, however, may or may not be considered as employees.  A company may have two (2) classes of agents.

1)     Salaried employees agents; and

2)     Commission agents

            The agents who belong to the first category, though they are also given a productivity bonus or a commission, are considered employees since they keep definite hours and work under the control and supervision of the company.    It has been held that employer-employee relationship exists when there is power to control the employee with respect to the means and methods by which his work is to be accomplished.

            While Commission Agents are paid their commission based on a certain percentage of their sales.  They do not have to devote their time exclusively or work solely for the company. They work at their own volition. The juridical element of control is absent in this situation.  Thus, there exists no employment relationship between the commission agents and the company.

Gusto ko na mag-resign, what shall I do?

        Resignation is a voluntary act of employee which is beyond the control of the employer (People’s Security Inc. vs. NLRC, 226 SCRA 146).   It is a right guaranteed by the Philippine Bill of Rights.

        Section 18. (2) "No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted."

       

        If the resignation is without just cause, the Labor Code mandates that a written notice must be served on the employer at least one (1) month in advance (Art.285).  Otherwise, the employer may hold the employee liable for damages.

    
        The notice requirement may be dispensed with if the employment is terminated for any of the following causes:

1. Serious Insult;
e.g. the transfer of an employee to a lower position

2. Inhuman and unbearable treatment;

3. Commission of a crime or offense by the employer or its representative; and
e.g. slapping the employee

4. Analogous causes
e.g. disapproval of application for an indefinite leave of absence due to illness

        The foregoing causes often constitute Forced Resignation/Constructive Dismissal.   An aggrieved employee therefore, may file a complaint for illegal dismissal before the National Labor Relations Commission.

          Forced Resignation/Constructive dismissal exists when an act of clear discrimination, insensibility or disdain, on the part of an employer has become so unbearable as to leave an employee with no choice but to forego continued employmentSoliman Security Services, Inc. The Court of Appeals, G.R. No. 143215, July 11, 2002).

        Ordinarily, when there is constructive dismissal, which is a form of illegal dismissal, the employer is liable for the full amount of backwages, if reinstatement is no longer possible, and separation pay (Siemens Philippines, Inc. vs. Enrico A. Domingo, G.R. No. 150488, July 28, 2008).

Extras, Casual and Seasonal are entitled to 13th month pay.

The 13th Month Pay Law (Presidential Decree No. 851) was enacted by President Ferdinand Marcos on December 16, 1975. But it was amended by Memorandum Order No. 28 issued by President Corazon C. Aquino on August 13, 1986.

It requires all employers to pay their rank and file employees a 13th-month pay not later than December 24 of every year REGARDLESS of the nature of their employment and irrespective of the method by which their wages are paid provided they worked for at least one (1) month during the calendar year. Hence, extras, casual and seasonal employees are entitled to the proportionate 13^th month pay provided they worked for at least one (1) month during the calendar year.

The minimum 13^th month pay required by law shall not be less than 1/12 of the total basic salary earned by an employee within a calendar year.

Other Certain types of employees who are entitled to 13^th month pay:

1. Employees who are paid on piece work basis;

2. Employees who are paid a fixed or guaranteed wage plus commission; and

3. Employees with multiple employees regardless of their total earnings from each of all their employers.

4. Piece-rate employees – those who are paid a standard amount for every piece or unit of work performed that is more or less regularly replicated.

EXEMPTED Employers:

1. The government;

2. Employers of household helpers and persons in the personal service of another;

3. 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.

DOLE is an Executive Branch entity

The Labor Standards law and the Labor Relations law do not apply to partnership, co-ownership or independent contractorship. In view of that, a person cannot pursue a claim before the Department of Labor or its offices or agencies such as the National Labor Relations Commission (NLRC) if the basis of complaint is not employment.

The DOLE serves as the policy-making, programming, coordinating, and administrative entity of the Executive Branch of the government in the field of labor and employment. It has exclusive authority in the administration and enforcement of labor and employment laws and such other laws. The complainant of a labor dispute therefore cannot go directly to the court regardless of whether or not the disputant stands in the proximate employer-employee relation, unless he has exhausted all available administrative remedies pursuant to the Principle of Exhaustion.

Sexual Harrasment

R.A. No. 7877 otherwise known as the Anti-Sexual Harassment Act of 1995 declares a policy that the State shall value the dignity of every individual xxxx guarantee full respect for human rights xxxx.

The victim of sexual harassment may be a WOMAN or MAN. It can only be committed if the same is:

1. WORK-related;

2. EDUCATION-related; and

3. TRAINING-related.

 

      The person who may be held liable is one who, having authority, influence, or moral ascendancy over another in a work or training or education environment, such as employer, manager, teacher, etc., DEMANDS, REQUEST or otherwise REQUIRES any SEXUAL FAVOR from another REGARDLESS of whether the demand, request or requirement for submission is accepted by the object of said act. Moreover, any person who directs or induces another or cooperates in the commission thereof without which it would not have been committed shall likewise be held liable. (sec. 3) They shall be penalized upon conviction, by IMPRISONMENT of not less than one (1) month nor more than six (6) months, or a fine.

Sexual harassment is committed when:

In a work-related or employment environment:

1. The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive ordiminish employment opportunities or otherwise adversely effect said employee;

2. The above acts would impair the employee's rights or privileges under existing labor laws; or

3. The above acts would result in an intimidating, hostile, or offensive environment for the employee.

In an education or training environment:

1. if the victim is under the care, custody or supervision of the offender;

2. if the victim whose education, training, apprenticeship or tutorship is entrusted to the offender;

3. When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or

4. When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.

Apparently, the usual perpetrators are men and the proximate cause is LUST. Jesus said in Matthew 5:28:

“But I tell you anyone who looks at a woman LUSTfully
has already committed adultery with her in his heart."