Dear Ms. Ina,
I hold now a piece of
paper entitled "Employment Certificate" originally signed last October
27, 2008 by the Vice President (my supposed
to be employer) and myself. Among the important points in the
certificate are: (1) I am hired effective November 17, 2008
as Manager (2) my starting salary is at Php25,000 and (3)
there is a one month probationary period.
Although signed by both
parties, (I signed a conforme) this certificate -- which I
insist is a contract -- was not consummated because my
supposed to be employer sent me a text message saying they changed
their mind and decided to defer hiring. There occurred a change of mind
in the part of my supposed to be employer after I asked on November 8,
2008 if I could loan a five-figure amount because I feared I
will lose the same amount of money in unpaid 13th month pay
and unused leaves due to my seemingly abrupt
resignation. (The loan was a request and not a condition I
imposed on my supposed to be employer for me to report to
The Certificate is worded
is to certify that our company is accepting you for the position of
_____. In principle you will start on Monday, ____. The starting gross
salary will be ____ and is open for adjustment based on performance.
is also with the understanding that after a one month probationary
period, we can formalize the workable years of employment and number of
months advance notice of any resignation.
behalf of the company, I would like to thank you for considering our
company and we look forward to a long term mutually gratifying working
Signature of company
Dear Naïve Natty,
it is not as simple as it sounds. As your case seems to be
more nuanced and different than the usual breach of contract case, and
because I am not a lawyer, I consulted with two lawyer friends and this
is what they have to say.
of them says that an Employment Contract is “more
encompassing” than an Employment Certificate. A
certificate may suffice depending on conditions for which this is used.
He adds that an employer who “reneges on an agreed employment
in violation of contract may be held liable for illegal termination and
breach of contract." But, he is talking about a Contract, not
second lawyer says:
- It is important to
note that the so-called "certificate of employment" contains an
effectivity date (17 November 2008). I also noticed that the
employer used the words "in principle". I could only surmise
that the employer wanted to reserve its right to move the start date or
that it is intending to let him sign another written document that
would contain the actual terms and conditions of his employment.
The presence of this effectivity date is crucial, in my
opinion, because it defined the commencement of
the employer-employee relationship. Having said this,
what we have now is an accepted job offer. I tried finding a
case that clearly states that employer-employee relationship exists as
soon as a job offer is accepted. Unfortunately, I couldn't
find one. All the cases that I reviewed pertain to persons
who have commenced their job in one way or another. If this is simply
an accepted job offer, this would now be a civil case rather than a
in the US, based on my limited knowledge and research, their laws in a
lot of States are not settled when it comes to employees who have been
offered a position but who has not started work. In one case,
the State of New Jersey ruled that the "prospective employee can claim
damages under the "detrimental reliance" theory. The closest
to what we have here in the Philippines is the Civil Code's "breach of
promise to marry" where the bride or groom is allowed to claim damages.
Under the "detrimental reliance" theory, an injured party can
assert a claim where the promise was "clear
and definite", it
was made with the
expectation that the prospective employee would rely upon said promise,
the prospective employee
relied upon the promise,
and there was injury
or damages that resulted.
It is important to note though that in this case, the Court issued a
caveat that this theory
can not be relied upon if the prospective employees "post-acceptance
conduct" justified the prospective employer's action.
The Court also limited the type of damages that could be
recovered to those losses incident to the reliance upon the job offer
itself. In deciding whether to pursue the civil action against the
prospective employer, Naïve Natty can use the above
- Assuming for the sake
of argument that the employer-employee relationship already commenced
when he signified his conformity to the terms stated in the Certificate
of Employment, the employer can also argue that his subsequent action
of requesting for a loan is an unacceptable behavior which justified
the termination of employment. After all, the employer, based
on the said certificate is entitled to evaluate the
employees’ qualification for the job for one month (the
probationary period). Considering also that the position
offered and accepted [is a managerial position], mere loss of trust and
confidence is a justifiable ground for an employer to terminate the
company/prospective employer can also deny sending such text message
(advising him that the offer is no longer valid) ever existed.
I am not so sure on how the local courts would treat or give
weight to evidence in the form of a text message. Moreover,
the company can simply claim likewise that the person who texted him
was not authorized to do so and turn the table on him and claim that he
failed to report for work on the agreed commencement date. He
should have demanded for an official notice from the company.
This fact certainly weakens his case.
- Even the DOLE lawyer
consulted is unsure. The statements given to him were conflicting.
They are almost guaranteeing that he has a case against the
prospective employer but they are also saying that the case should be
based on a breach of contract and that it doesn't fall under the
jurisdiction of the NLRC there being no employer-employee relationship.
And, my own two cents,
Natty, are these:
At the end of the day, no one can argue with a job well done.
- You are entitled to
13th month pay even if you don't finish the year. Read your
contract before resigning
so you will know what benefits you are entitled to when you leave.
- Ask to see the
contract from your prospective employer. If they show you a
certificate, ask to see a contract. If they say they would give it
later, you would have to ask why and explain to them that a certificate
is not binding, and that it might leave you exposed, if you
resign. Ask to read the contract for at least one day before
signing. Make sure it says contract.
Do not be pressured into signing there and then. If they insist, you
have to ask why because all you need is one night to read and
understand the terms. The world will not change in one night.
- If there are no terms,
ask them what the terms are. Ask: "What are my deliverables?
I'd like to have these attached to the contract. Please
include the scope and coverage of my responsibilities." Actually, you
should ask about those during the job interview and have it included in
- If they are in a hurry
to hire you and are pressuring you to resign, negotiate to have them
pay for any benefits accruing to you that you would lose if you left
now and other obligations (like car loans) that you would have to pay
in full, if you left now. If you’re really good and they
really need you, they would consider it. If they could not do
that, negotiate for a longer waiting period. If they could
not give you that, stay with your job or look for a different prospect.
If, however, the prospects with this new company are too good
to pass up, you may just have to offset your obligations, if any,
against all your benefits.
- With regards to
pursuing a case, you are entirely within your rights to do
so. Do consider, however, that the amount of time and money
you will spend might best be expended on finding a job, doing a real
good one, making a good name for yourself, making your new employer
look very good, and making the unlamented ex-future employer regret
their decision of not hiring you.