Dear Attorney,
I would like to request a legal opinion regarding a kasambahay who has been working for our household for a decade. Due to financial constraints, we are considering ending her employment. There is no formal employment contract in place.
I would like to know whether we are required to provide separation pay, and if so, how much? Also, what is the proper notice period for terminating her employment?
Thank you for your assistance.
Sincerely,
A Household Employer
Insights:
In the Philippines, domestic workers or "kasambahay" are covered by Republic Act No. 10361, also known as the "Kasambahay Law." This law provides specific protections and rights for household employees, including provisions on termination and separation pay.
Termination and Separation Pay for Kasambahay
Under the Kasambahay Law, employers must adhere to the following rules when terminating the employment of their kasambahay:
Notice Period:
Employers are required to give a prior notice of at least 5 days before terminating a kasambahay, regardless of whether there is a written employment contract. This notice allows the kasambahay to prepare and seek new employment opportunities.Just Causes for Termination (No Separation Pay Required):
If the kasambahay is terminated for a just cause (such as serious misconduct, willful disobedience, gross neglect of duties, or crimes against the employer or their family), separation pay is not required. A just cause termination can be immediate if supported by valid grounds.Authorized Causes for Termination (Separation Pay Required):
When the termination is due to authorized causes, such as financial constraints, retrenchment, or redundancy, the employer is required to provide separation pay. The amount of separation pay for a kasambahay is typically one month’s salary or half a month’s salary per year of service, whichever is higher. This ensures that the kasambahay has some financial support while transitioning to other employment.No Formal Contract:
Even in the absence of a formal employment contract, the kasambahay's rights under the Kasambahay Law are still enforceable. The length of service and the circumstances surrounding the termination will be considered in determining whether separation pay is applicable.
Key Takeaways for Employers:
- Termination of a kasambahay’s employment requires a minimum of 5 days' notice.
- No separation pay is required if the termination is for just cause.
- If the termination is due to financial difficulties or other authorized causes, separation pay equivalent to one month's salary or half a month’s salary per year of service is required.
- A formal written contract is not a prerequisite for the application of these legal provisions under the Kasambahay Law.
Employers should comply with these regulations to avoid potential legal disputes and ensure that the rights of kasambahays are respected.