Although employers have been allowed to extend the floating status of their employees beyond the maximum six months provided for in the Labor Code, the Department of Labor and Employment said they cannot force their employees to agree to the extension.
“This is based on an agreement between the two parties. So if the employees refuse to agree, they cannot be forced to,” Labor Undersecretary Benjo Benavidez said in an online forum Wednesday. “If they are forced, their next recourse is to go to the DoLE and file a case,” he added.
Benavidez said employees can file a case for constructive dismissal. He said constructive dismissal refers to an involuntary resignation resorted to when continued employment becomes impossible, unreasonable, or unlikely.
Last Tuesday, the DoLE allowed the extension of the rehiring policy for temporarily displaced workers for another six months.
In Department Order No. 215-2020, DoLE said “in case of declaration of war, pandemic, and similar national emergencies, the employer and the employees, through the union, if any, or with the assistance of the DoLE, shall meet in good faith for the purpose of extending the suspension of employment for a period not exceeding six months.”
The Labor department, however, stressed that the extension of suspension of employment shall not affect the “right of the employees to separation pay,” adding that the first six months of suspension of employment shall be included in the computation of the employees’ separation pay.
According to DoLE, the employer shall report to the DoLE, through its regional offices, the extension of suspension of employment 10 days prior to its effectivity, subject to inspections.
Earlier this month, Labor Secretary Silvestre Bello III said employers want the period to rehire employees who were temporarily terminated due to the COVID-19 pandemic extended for another six months. He said employers are appealing for a six-month extension as the business climate is still not good.
Under the Labor Code, the employer-employee relationship may be suspended in case of suspension of operation of the business or undertaking of the employer for a period not exceeding six months.
If not rehired after six months, the employee placed on floating status must be provided with their separation pay.