In February 2020, April (not her real name) was wooed away from her former employer to join a local restaurant in Metro Manila as a restaurant manager.
Alas, on March 17, 2020, the nation was locked down. Since her new company was not considered an essential business, the company had to stop operations. Days turned into weeks; weeks turned into months. As a new hire, April didn’t receive any pay during the lockdown. However, she was still expected to produce output to help the restaurant resume operations once quarantine guidelines were eased.
In July 2020, April made training materials based on the guidelines of the Inter-Agency Task Force on Emerging Infectious Diseases. In the last quarter of 2020, the company’s operations resumed at 50% dining capacity, which helped the business get back on its feet. Just like many employees of businesses struck by the lockdown, April and her colleagues received pay cuts.
Labor Advisory No. 17, Series of 2020, Section 5 on Wages and Wage-Related Benefits of the Department of Labor and Employment (DoLE) states:
“Employers and employees may agree voluntarily and in writing to temporarily adjust employees’ wage and wage-related benefits as provided for in existing employment contract, company policy, or collective bargaining agreement (CBA). The adjustment in wage and/or wage-related benefits shall not exceed six months, or the period agreed upon in the collective bargaining agreement (CBA), if any. After such period, employers and employees shall review their agreement and may renew the same.”
April asked the general manager, who had hired her, about this matter. Last month, instead of receiving the good news that her salary would be restored to the original amount, April received a poor performance evaluation that contained key result areas and key performance indicators that had never been discussed with her. Worse, she was offered a “probationary extension” of 30 to 45 days because the number of days she had reported for work from the start of the lockdown up to the present supposedly did not reach six months.
April was hired in February 2020, and because she had worked during the lockdown months, she exceeded the six months mandated by the Labor Code that probationary employees should render. Another DoLE circular, particularly Labor Advisory No. 14 series of 2020 entitled Clarification on the Non-Inclusion of One-Month Enhanced Community Quarantine Period on the Six-Month Probationary, states that “one month of the lockdown should not be included in the counting of the probationary period.” Even after deducting the one month, April had worked for 10 1/2 months.
However, the general manager reasoned that we are in a pandemic, and times are tough. But April knew that the January and February 2021 sales were not much lower than the sales during the same period in 2020 because she had been asked to prepare the sales report.
As of this writing, April has sought the help of the Public Attorney’s Office, the Department of Labor and Employment (DoLE), and the National Labor Relations Commission. The people in the three government agencies whom she consulted concur that the employer is guilty of constructive dismissal. Constructive dismissal, as defined by DoLE, is “an involuntary resignation resorted to when continued employment becomes impossible, unreasonable, or unlikely; when there is a demotion in rank or a diminution in pay; or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to an employee or an unwarranted transfer or demotion of an employee, or other unjustified action prejudicial to the employee.”
Yes, small businesses may have incurred losses during the pandemic. Thankfully, some may have received help from the government to help tide them over. However, these businesses have employees under their care and stewardship. Employees will not accept pandemic-related excuses if they see business operations picking up.
It is true that the proprietary interests of business owners must be respected. However, in doing so, we must be mindful that both the employer and the employee are bound by the law. Neither may resort to means that trample on each other’s rights.
As a Human Resources teacher, I believe it is my moral obligation to educate not just my students but also the public about the fundamental rights of employees, one of which is to ensure that due process is followed in all matters concerning their employment.
Alvin Neil A. Gutierrez is an Assistant Professor of the Management and Organization Department of the Ramon V. del Rosario College of Business. He teaches Strategic Human Resources and Organizational Behavior as well as Organizational Development to undergraduate and MBA students.