Dear Mr./Ms.

[insert name],

I am writing regarding your failure to comply with the law on issuance of my COE, BIR
2316 form, and final pay.

1. Release of COE: Illegally Withholding Certificate of Employment.

Along with my final pay and BIR 2316 form, my COE has also not been issued.
According to my legal counsel, under Labor Advisory No. 6, Series of 2020, an employer
MUST provide the Certificate of Employment within three days from the request of the
employee. If you are in any doubt, a copy can be downloaded from the DOLE website
for reference. As can clearly be seen, it states:

“III. ISSUANCE OF CERTIFICATE OF EMPLOYMENT

The employer shall issue a certificate of employment within three (3) days from the
time of the request by the employee.”

Please also be aware of the content of the COE, to conform to the required standards.
As per the LA, this is the given definition of what the COE is:

“I. DEFINITION OF TERMS

1. "Certificate of Employment” refers to a certificate from the employer specifying the
dates of an employee's engagement and the termination of his/her employment and the
type or types of work in which he/she is employed. For purposes of this advisory, an
employee whose employment is not yet terminated may also ask for a Certificate of
Employment.”

In light of this, you now have THREE (3) DAYS from the date of your receipt of this
LEGAL DEMAND in which to issue for collection my COE, as per the Labor Advisory.
Your failure to do so will result in legal action against the company and against you
personally.

2. Final Pay / BIR 2316 Form: Illegally withholding pay as per Article 116 of
the Labor Code (renumbered).
Regarding the issuance of my BIR 2316 form and final pay, the recently issued Labor
Advisory previously mentioned also covers the time period in which the employer MUST
process final payment and other documents.

As per LA 06-2020:

“II. TIME OF PAYMENT AND/OR RELEASE OF FINAL PAY

To effectively harmonize the management prerogative of the employer and the right of
the employee, the Final Pay shall be released within thirty (30) days from the date of
separation or termination of employment, unless there is a more favorable company
policy, individual or collective agreement thereto.”

This means that you are required to release my final pay within 30 days of my date of
termination, be it voluntary or involuntary, and you have no right to withhold final pay
past that period, as long as my clearance with the company is complete. Company
policy does not preclude you from adherence to the legal requirements of the Labor
Code and its subsequent Advisories.

Please be aware that I am fully conversant with the Milan Doctrine, from the Supreme
Court case of Milan v. NLRC (G.R. No. 202961, 04 February 2015). In this case, the
Supreme Court upheld the employer’s right to withhold final salary pending clearance
from the company.

However, this will only apply until such time as the clearance is complete, and does not
apply, according to the cited jurisprudence, to the withholding of my BIR 2316 form. In
the aforementioned case, the Supreme Court ONLY applies the withholding to the salary
of the employee until such time as clearance is completed.

“However, our law supports the employers’ institution of clearance procedures before
the release of wages.”

According to my legal counsel, this does NOT include the withholding of other related
documents that are required to be released by the employer upon the termination of
employment.
Since my clearance with the company is complete, you are now required to release my
final pay immediately. As of this date, it has already been more than 30 days since my
date of termination of employment, and my clearance is complete. I have no more
accountability with your company.

I now require you to release my salary and BIR 2316 form forthwith. In light of the
current pandemic situation, I will permit you FIVE (5) WORKING DAYS from your
receipt of this demand in which to complete my final pay calculations; complete my BIR
2316 form; and provide a schedule within said time period for me to collect them in
person.

Please be aware that your failure to comply with these demands will result in legal
action and the immediate filing of a complaint for Illegally Withholding Pay with the
office of the National Labor Relations Commission, which will include a claim for interest
at 12% per annum for the period from the expected date of receipt to the completion
of the complaint in the NLRC, as well as claims for both moral and exemplary damages
at their maximum amounts, and legal fees at 10% of the total amount awarded.

I look forward to your prompt and positive response.