Dear Atty. Kathy,
I was recently reinstated to Company Z after a finding of illegal dismissal. During the orientation for the execution of the employment contract and issuance of identification cards, I wondered why my date of employment was 2022 when I started my first work assignment in Company Z in 2019. The human resources head explained that I was considered a new employee at reinstatement since my current work is not the same as my previous work. Is the HR head correct? If yes, I am worried about the impact on the computation of my benefits because my tenure will be three years short.
Xavier
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Dear Xavier,
Based on rulings of the Supreme Court, unless there is evidence to the contrary, an employee’s period of service is presumed continuous and its reckoning point shall be the day the employee first came under the employ of the employer.
In your case, it is not mentioned that your employment relationship with Company Z was validly severed during the interim. Thus, if there is no such evidence that you were validly separated from Company Z during your employment, your length of service or tenure should be reckoned from the time you were first employed or assigned to work in Company Z in 2019, not when you returned for work in 2022.
You shall not be considered a new hire if you return to work upon an order of reinstatement because reinstatement presupposes the illegality of the dismissal, and the employee is deemed to have remained under the employ of the employer from the date of illegal dismissal up to the time of his/her actual reinstatement. Thus, there is no prior employment to speak of since your period of service is continuous.
On the other hand, if during your employment with Company Z your employment relationship with the latter was validly severed, returning to the same employer — Company Z, shall be considered a rehiring, and the length of your service shall be reckoned from the day you were rehired in 2022.
In sum, subject to evidence that your employment was validly severed in the interim, the HR head is incorrect in saying that you were considered a new employee at reinstatement.
(Melchor A. Cuadra, et al. vs. San Miguel Corporation, G.R. 194467, 13 July 2020.)
Atty. Kathy Larios