Dear PAO,
I am an employer of a domestic helper. I recently found out that she has an incurable disease. Since then, I noticed that her illness is already affecting her performance of household chores. She usually stays in her room, where she rests and sleeps. Therefore, I am thinking about dismissing her, but I am still undecided because she is her family's breadwinner. Because of this, she sends a monthly allowance to her two children. Moreover, she still has seven months left in her employment contract. Can I terminate her employment even before the expiration of her contract?
Priscilla
Dear Priscilla,
To answer your query, we shall refer to Republic Act 10361, known as the Domestic Workers Act or Batas Kasambahay. It states that:
"Section 34. Termination Initiated by the Employer. – An employer may terminate the services of the domestic worker at any time before the expiration of the contract, for any of the following causes:
"(a) Misconduct or willful disobedience by the domestic worker of the lawful order of the employer in connection with the former's work;
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"(b) Gross or habitual neglect or inefficiency by the domestic worker in the performance of duties;
"(c) Fraud or willful breach of the trust reposed by the employer on the domestic worker;
"(d) Commission of a crime or offense by the domestic worker against the person of the employer or any immediate member of the employer's family;
"(e) Violation by the domestic worker of the terms and conditions of the employment contract and other standards set forth under this law;
"(f) Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and
"(g) Other causes analogous to the foregoing." (Emphases supplied)
Applying the said law in your situation, you may terminate the services of your domestic worker at any time before the expiration of her contract. Based on the above-stated facts, you found out that she has an incurable disease. Her continued employment also appears to be prejudicial to her health, as she often has to stay in her room to rest. This resulted in her poor work performance and inefficiency in doing her household duties. Although she has seven months left in her contract, the law authorizes you to initiate her termination based on the grounds mentioned particularly in paragraphs (b) and (f) in Section 24 of R.A. 10361.
However, as an employer, the burden of proving the cause for dismissing your kasambahay rests upon you, and your failure to discharge such burden may result in a finding that the dismissal is unjustified and, therefore, illegal. It is the employer who must prove the validity of the termination and not the employee. The employer must affirmatively show adequate evidence that the dismissal was for a justifiable cause.
We find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. Thus, the opinion may vary when the facts are changed or further elaborated. We hope that we were able to enlighten you on the matter.
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