Reinstating a ‘floating’ employee

Reinstating a ‘floating’ employee "Prior to the pandemic, I was a regular employee in a private firm. Due to the unexpected economic downfall caused by the coronavirus pandemic, many, including myself, were placed on a floating status from March to May 2020. Thankfully, we were called to report back to work last June. I admit that I was too excited and was too happy to return to work that I forgot to read the terms of our reemployment. It surprised me when I learned that I was on a probationary status. Worst, the new supervisor informed me that I failed to qualify to the company standards. This is too shocking and painful since I cannot afford to be unemployed in these dire moments. Do I even have a right to contest my situation?Johnrelle Dear Johnrelle,The answer to your question is yes. You mentioned that you were a regular employee prior to the layoff. In this regard, a discussion as to the nature of a company layoff becomes necessary since a determination of the employment classification of an employee placed on a layoff is pertinent. Succinctly, Article 301 of Presidential Decree 442, otherwise known as the Labor Code of the Philippines, states: “Article 301. When employment not deemed terminated. The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations of his employer or from his relief from the military or civic duty.”A reading of the cited provision dictates that a company is allowed to lay off employees or suspend operations for a period not exceeding six months. As mentioned in the quoted provision, the employer shall reinstate the employee to his former position without loss of seniority rights if the employee would resume his or her work in the company. Thus, such employee is not deemed terminated. In fact, in Manila Mining Corp. Employees Association-Federation of Free Workers Chapter vs Manila Mining Corp. (GRs 178222-23, Sept. 29, 2010), penned by Associate Justice Jose Perez, the Supreme Court said: “Article 286 (now Article 301) of the Labor Code allows the bona fide suspension of operations for a period not exceeding six months. During the suspension, an employee is not deemed terminated. As a matter of fact, the employee is entitled to be reinstated once the employer resumes operations within the six-month period.” (Emphasis supplied)Since no termination of employment took place, your regular employment status remains and cannot be downgraded to a probationary status. In Lagonoy Bus Co. Inc. (LBCI) vs Cariño (GR 165598, Aug. 14, 2007), ponencia of Associate Justice Leonardo Quisumbing, it was held: “On the third issue, petitioners contend that respondents were hired by the new LBCI under probationary status and were bound by the rules on probationary employment. Thus, petitioners had just cause to dismiss them when they failed to meet the company standards and committed acts tantamount to dishonesty and loss of confidence.“Respondents respond that having worked for LBCI for at least two years and performed services that were desirable and necessary to LBCI’s business, they had attained regular status. Hence, they could not be dismissed without just cause and due process.“Having ruled out a sale of LBCI during its temporary suspension of operations, we hold that respondents remained regular employees of LBCI regardless of the change of management. They could likewise not be dismissed without just cause and due process. On this point, we find no reason to depart from the findings of both the Labor Arbiter and the Court of Appeals. They are positively instructive and well considered.” (Emphasis supplied)We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated. Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net" - https://www.affordablecebu.com/