Query: Can my employer terminate my employment even if I am in floating status?

In the Philippines, the concept of "floating status" or temporary suspension of employment is recognized, especially in industries where work may be seasonal or project-based. However, even during this period, employers must adhere to specific legal requirements to ensure that any termination is lawful.

1. Definition and Legal Basis of Floating Status

Floating status occurs when an employee's work is temporarily suspended due to the lack of available work. This status is often applied in the security, construction, and other project-based industries. The legal basis for floating status can be found in the Labor Code of the Philippines, specifically under the rules governing suspension of employment due to lack of work or business downturns.

2. Duration of Floating Status

According to the Department of Labor and Employment (DOLE), floating status should not exceed six months. If the employee remains on floating status beyond this period without being recalled to work, the employee may consider themselves constructively dismissed, and they have the right to file a complaint for illegal dismissal.

3. Termination During Floating Status

An employer can terminate an employee during floating status under certain conditions. These conditions include:

Authorized Causes: Termination due to authorized causes such as retrenchment to prevent losses, closure of business, or redundancy must follow due process. This involves notifying the affected employee and DOLE at least 30 days prior to the intended date of termination and paying the employee separation pay.
Just Causes: Termination due to just causes such as serious misconduct, willful disobedience, gross and habitual neglect of duties, fraud, or commission of a crime against the employer or their family. The employer must observe due process by conducting a proper investigation and providing the employee with a chance to defend themselves.

4. Due Process

Whether the termination is due to authorized or just causes, employers must observe due process:

Notice: Provide written notice to the employee explaining the reason for termination.
Hearing: Allow the employee to respond to the charges against them and present evidence in their defense.
Decision: Issue a written notice of termination only after the proper hearing and investigation.

5. Employee Rights

Employees on floating status have the right to:

Recall to Work: Expect to be recalled to work within the six-month period.
Separation Pay: Receive separation pay if terminated due to authorized causes.
Filing Complaints: File a complaint with DOLE or the National Labor Relations Commission (NLRC) for illegal dismissal if terminated without due process or valid reason.

Conclusion

While an employer can terminate an employee who is on floating status, they must strictly comply with the legal procedures and grounds for termination as stipulated in the Labor Code of the Philippines. Failure to do so can result in a complaint for illegal dismissal, and the employer may be required to provide appropriate remedies such as reinstatement or payment of back wages and separation pay. Employees should be aware of their rights and seek legal assistance if they believe their termination was unjust or illegal.