After reading What is the effect if reinstatement is no longer practicable?, read also Is an employee who was illegally dismissed from employment automatically entitled to reinstatement?
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An employee who is unjustly dismissed from work shall be entitled to reinstatement
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The entitlement to reinstatement shall be without loss of seniority rights and other privileges
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If reinstatement is no longer possible, the unjustly dismissed employee is entitled to separation pay
Is it possible that an illegally dismissed employee would be entitled to separation pay rather than reinstatement?
For a better understanding, let us take the case of Dumapis vs. Lepanto Consolidated Mining Company, G.R. No. 204060, September 15, 2020
In this case, the employees are lead miners, muckers and LHD (load, haul, dump) operators. They were given the proper equipment and tolls including machineries for use in the mining activity. Hence, they do not need to handle with their bare hands the ores they are mining. Admittedly, their only assigned task is to drill, bardown, rockbolt, blast and haul. Hence, the mere act said employees in handling highgrading ores, i.e., washing, segregating and the like, are the acts contrary to their normal activity and against the Code of Conduct of their employer, Lepanto Consolidated Mining Company which they violated.
Accordingly, said employees were accused of highgrading based on hearsay and were dismissed from employment on that basis. As a consequence, the employees filed a complaint for illegal dismissal.
What are the effects if an employee were found to be illegally dismissed?
The Supreme Court said:
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.
However, there are instances where reinstatement may no longer be practicable due to the strained relationship of the parties or that the former position no longer exists.
What is the effect if reinstatement is no longer practicable?
The Supreme Court said:
If reinstatement is no longer practicable, the illegally dismissed employee is entitled to separation pay and backwages.
In case separation pay is awarded and reinstatement is no longer possible, backwages shall be computed from the time of illegal dismissal up to the finality of the decision should separation pay not be paid in the meantime. It is the employee’s actual receipt of the full amount of his separation pay that will effectively terminate the employment of an illegally dismissed employee. Otherwise, the employer-employee relationship subsists.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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