Ina Teves, Organizational Development Consultant

Ina Teves is an organizational development consultant with a change management firm dedicated to making a difference wherever it goes by journeying with the client through the entire process of organizational transformation. Email your questions to ina.b.teves@gmail.com.

Dear Ms. Ina:

I was hired by this company and worked there for three months. My contract stated that I should stay for two years; otherwise I will pay have to pay a bond. In return they are going to give me trainings [sic]. I received my third-month performance evaluation and got a failing score. I did not pass the requirement but the HR manager simply told me that we will meet again after a month.

Then, I got this offer from another company and they needed me to start as soon as possible. And I, knowing that I will not be regularized based on the result of my performance evaluation, e-mailed a resignation letter effective immediately. I did not tender the 30 days notice and went on AWOL. I did not claim my remaining salary nor 13th month,  etc since I went on AWOL and know that it will already be forfeited.

Now, I heard they are hunting me down and would file a case against me. My question is: what cases can they file against me? What can I do about it? What happens if I will not appear during the hearings? Can they make me pay for the Php 20,000.00 bond? They are insisting I got these printer and Outlook training workshops. It is an in-house training given to all employees of the company.

Printer training was given so they can minimize defects of printer because it is costly. They gave the Outlook training because they are going to use a new version of the Outlook, which is the Outlook Exchange. Are these valid "trainings" which are stated in my contract even if it is not in any way related to my job as a recruitment officer and that is not an additional skill that will make me more marketable?

If they so file a case against me for going AWOL, is it not automatic that I be terminated from employment and not get any benefits I am entitled to?

I hope you can help me on this matter. I am really bothered right now. I heard that they are going to file against me. I only went on AWOL because there is an opportunity, and the possibility of being hired as a regular employee is not clear anymore because of my failure to achieve the required performance standard of 70% which should mean outright termination. But I will not wait for them to terminate me and not have any work...so I chose to be on AWOL and start with another work.

Didi

Dear Didi:

You do seem to be in a tight spot.

Can the company sue you for not fulfilling the terms of your training contract?  Yes.  They can sue for any training they enumerated in your contract even if it does not add to your functional skills or “make you marketable.”  Never mind if it’s just how to use the printer and how to use Outlook Exchange - if it’s named in the contract, you’ll have to pay for it because you agreed to.  The philosophy behind this is that, the company spent time on “training,” and time costs money. Whenever a “trained” employee leaves, that investment is gone and the company will have to spend time recruiting and training another one.

Can one resign effective immediately? Again, review the terms of your contract.  Your company requires 30-days’ notice. By your own account, you said that the HR officer who evaluated you wanted to see you after a month.  In most companies this means that you were being given another chance to improve despite the failing mark you received.  There would have been no harm in confirming your employment status.

Also the Labor Code provides that an employee should give one month’s notice; otherwise his employer may hold him liable for damages. The Labor Code, however, also states that an employee may resign without prior notice because of inhumane treatment by the employer, insults to or crimes against his person (and similar situations).  What was your situation with your employer?

Can one just e-mail a resignation letter?  Yes, thanks to the e-Commerce Law or Republic Act 8792.  Some relevant portions:

Sec. 6. Legal Recognition of Data Messages. - Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the data message purporting to give rise to such legal effect, or that it is merely referred to in that electronic data message.
Sec. 7. Legal Recognition of Electronic Documents. . Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and -
(a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains its integrity and reliability and can be authenticated so as to be usable for subsequent reference, in that -
(i) The electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change, or any change which arises in the normal course of communication, storage and display; and
(ii) The electronic document is reliable in the light of the purpose for which it was generated and in the light of all the relevant circumstances.
(b) Paragraph (a) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the document not being presented or retained in its original form.
(c) Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document if -
(i) There exists a reliable assurance as to the integrity of the document from the time when it was first generated in its final form; and
(ii) That document is capable of being displayed to the person to whom it is to be presented: Provided, That no provision of this Act shall apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity.
For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws.
This Act does not modify any statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules relating to authentication and best evidence.
What does this mean to you? It means that the resignation via e-mail is allowed provided that you can prove that you sent it and that it was received.  So configure your e-mail application to send delivery receipts back to you. It also means that while e-mailed resignations are legal, you still have to abide by the terms of employment and the termination thereof specified in your contract.

Can you tell your prospective employer that you have an existing training contract? Yes. Many prospective employers can “buy” the contract of persons they really want to hire, but they have to be made aware of such a contract and of the possibility that you might be sued.  In the event that you are sued, you need to know if they are willing to support you legally.

What is the best thing to do right now?  Speak with your former employer before he talks to your current employer.  Agree on the terms of payment, if there is indeed something to be paid.  Explain your side as plainly as possible – that you thought you were going to be terminated because of your failing mark. Negotiate the terms of payment – compute whether the salary and the 13th month pay you forfeited is acceptable to them. If not, then, arrange for how you can pay it without having to go to court over Php20,000 (and both parties spending more on lawyers and wasting a lot of productive hours).

I hope you find this helpful.