Beruflich Dokumente
Kultur Dokumente
Reinstatement means restoration of the employee to the position from which he or she has been unjustly removed. Reinstatement without loss of seniority rights means that the employee, upon reinstatement, should be treated in matters involving seniority and continuity of employment as though he or she had not been dismissed from work. When a Labor Arbiter rules for an illegal dismissal, reinstatement is immediately executory even pending appeal.
The only exception to the above rule is where the contractual employee is dismissed prior to the end of his contract. If this happens, what takes place is an actual dismissal for which separation pay may be claimed by the contractual employee. In fact, a contractual employee is considered, for the duration of his or her contract, as a regular employee. He or she enjoys a security of tenure for the limited period provided under the contract, and cannot be removed by the employer without just cause and without following the procedure outlined under the Labor Code for the termination of a regular employee. Thus, if the contractual employee is removed without just cause and without following the procedure outlined under the law, the employer not only commits breach of contract but also illegal dismissal. Thus, in cases of pre-termination of a contractual employee, it becomes the obligation of the employer to grant separation pay. As in all cases of termination of employment involving other types of employees, where the termination is due to serious business losses or financial reverses, there are Supreme Court cases to the effect that the employer is exempt from payment of separation pay. Therefore, this should also hold true with regard to contractual employees. However, there must be sufficient proof that the pre-mature termination of the contractual employee was actually due to serious business losses or financial reverses. If the employer is unable to adduce such proof, he is mandated by the Labor Code to pay the contractual employee separation pay.