Bar Mentoring Program

Mock Bar Exam in Labor Law

Albano Review

1. HARRY PATA RESTAURANT (HARRY PATA for short) is an establishment which

caters exclusively to Chinese customers. It employs 40 waiters and 10 office
personnel, including the restaurant manager. It operates from 10: A.M. to 2:00 P.M.
and resumes at 5:00 P.M. up to 12:00 Midnight. It collects 10% service charge from its
customers. Its food supplies are taken from ATTORNIS FISH, INC., a distributor of fish
and meat products.

On January 1, 2014, HARRY PATA hired Mr. QUICKIE as waiter pursuant to an

employment contract which stipulated a salary of P10,000.00 per month plus board
and lodging, 10-day vacation leave, and 10-day sick leave. HARRY PATA required Mr.
QUICKIE to put up a deposit of P2,000.00 to answer for losses and breakages of
kitchen and dining utensils. As of December 31, 2014, 10 plates were broken and 10
spoons, forks and knives were lost, the cost of which totals P500.00. It was
established that the said losses and breakages were attributable to the fault of Mr.
QUICKIE. When Mr. QUICKIE received his pay slip on December 31, 2014, he
surprisingly noticed that the sum of P500.00 was deducted from his deposit. He also
noticed that he was not paid the cash equivalent of the service incentive leave.

On December 31, 2014, HARRY PATA closed early at 8:00 p.m. Upon reaching home at
10:00 p.m., Mr. QUICKIE joined the New Year merrymaking, but unfortunately, he was
hit by a stray bullet in the head which resulted in his instant death. Mrs. QUICKIE then
filed a claim for death benefit under the employees compensation law.

On January 15, 2015, after the death of Mr. QUICKIE, three (3) of the 40 waiters
voluntarily resigned from their employment, while two (2) waiters were dismissed
for engaging in a fistfight while on duty. The dismissed waiters filed a complaint for
illegal dismissal with the Labor Arbiter, praying that they be reinstated with full
backwages, moral damages and attorneys fees.

To show their sympathy to the plight of the dismissed waiters, fifteen (15) waiters
filed with the Regional Office of the Department of Labor and Employment request
for inspection of the establishment for alleged violation of labor standards,
specifically, non-payment of overtime pay, night shift differential, and holiday pay.
Acting on the request, the Regional Office conducted an inspection of the Restaurant.
The inspection confirmed that there was indeed non-payment of overtime pay, night
shift differential, and holiday pay. Thus, the Regional Director issued an Order
directing HARRY PATA to pay all the 40 waiters the total amount of P200,000.00,
broken down as follows:
(a) P180,000.00 (P5,142.00 each) - for the 35 waiters (including Mr. QUICKIE and
those who did not sign the request for inspection)

(b) P10,000.00 (P3,333.00 each)- for the 3 waiters who voluntarily resigned;

(c) P10,000.00 (P5,000.00 each) - for the 2 dismissed waiters.

In the meantime, HARRY PATA hired three (3) learners (pursuant to its Learnership
Program), to replace the three (3) waiters who resigned. A learnership agreement
was executed between HARRY PATA and the three (3) learners, wherein it was
stipulated that the learnership period shall start on January 16, 2015 until April 15,
2015. Upon expiration of the 3-month learnership period, HARRY PATA
RESTAURANT terminated the employment of the learners on the ground of
expiration of contract.

Feeling that the 3-month learnership period is too short, HARRY PATA RESTAURANT
thought of putting up an apprenticeship program for waiters. Thus, it sought the
approval of its apprenticeship program with TESDA.

QUESTIONS:

1. Can HARRY PATA validly require Mr. QUICKIE to put up a deposit to answer for
losses and breakages? Explain.

ANSWER: No. because HARRY PATA already collects service charges from its customers.
Service charges are intended to answer for losses and breakages.

2. Can HARRY PATA validly deduct the cost of board and lodging from the salaries of
Mr. QUICKIE? Explain.

ANSWER: No, because the Employment Contract stipulates that the cost of board & lodging
is in addition to his wages

3. Was HARRY PATA correct in not paying Mr. QUICKIE the cash equivalent of the
service incentive leave? Explain.

ANSWER: Yes, because he was already enjoying a 10-day vacation leave. Employees
enjoying a vacation leave of at least five (5) days are no longer entitled to service incentive
leave.
4. Is Mrs. QUICKIE entitled to death benefit? Explain.

ANSWER: No, because the death is not work-connected.

5. Was the Regional Director correct in ordering HARRY PATA to pay all the 40
waiters the total amount of P200,000.00? Explain.

ANSWER:

(a) For the 35 waiters Yes, because the exercise of visitorial and enforcement power
applies to all employees including those who did not sign the complaint or request for
inspection

(b) For the 3 resigned waiters and the 2 dismissed waiters No, because the visitorial and
enforcement power applies only to employees who are still working with the company.

6. Was the termination of the learners valid and justified? Explain.

ANSWER: No, because the law requires employers to absorb the learners into its regular
workforce upon expiration of the learnership period.

7. if you were the Head of TESDA, would you approve the apprenticeship program of
HARRY PATA? Explain.

ANSWER: No, because restaurant business is. not a highly technical industry. Moreso,
because the job of waiter is not an apprenticeable occupation.

2. MARK met SPENCER who used to work with Leisure Travel Agency, through the
introduction of their common friends. In that meeting SPENCER convinced MARK
that by giving him P200,000.00, he can get him a US visa and without any appearance
before the U.S. Embassy. Thus, MARK gave SPENCER the amount of P200,000.00.
After receiving the money, SPENCER assured MARK that he can get the visa within one
week. Thereafter, MARK failed to hear from SPENCER, prompting him to file a
complaint for illegal recruitment against SPENCER. Can SPENCER be held guilty of
illegal recruitment? Explain.
ANSWER:

SPENCER cannot be held guilty of illegal recruitment because he did not offer a job to
MARK. MARK gave SPENCER the sum of P200,000.00 as payment for obtaining U.S. visa.
The essence of recruitment is offer or promise of employment.

3. KATE SPADE, an American citizen, was hired by MANILA HOTEL as Executive Chef.
MANILA HOTEL obtained an Alien Employment Permit for her. After serving for six
(6) months, KATE SPADE was offered a hefty salary by ORIENTAL HOTEL, for which
reason KATE SPADE resigned from MANILA HOTEL and moved to ORIENTAL
HOTEL. Enraged by the act of KATE SPADE, MANILA HOTEL sought the deportation of
KATE SPADE for working without an Alien Employment Permit. KATE SPADE moved
for the dismissal of the complaint on the ground that she is in fact a holder of an Alien
Employment Permit which MANILA HOTEL itself obtained in her behalf. How would
you rule on the motion to dismiss? Explain briefly.

ANSWER:

I will deny the motion to dismiss. Although KATE SPADE is the holder of an Alien
Employment permit, she can in fact be deported because she transferred to another
employment without prior approval from the DOLE.

4. Mrs. FIELDS was hired by MANILA AGRICULTURAL CORPORATION as Customer

Service Representative. In her job application form, she indicated that she was single
despite the fact that she was already married. When MANILA AGRICULTURAL
CORPORATION learned of the misrepresentation, it dismissed Mrs. FIELDS from her
employment on the ground of dishonesty and falsification. Is the dismissal valid?
Explain briefly.

ANSWER:

The dismissal is not valid. An employer cannot dismiss an employee simply because she is
married.

5. Mazda-Audi-Nissan International Automotive Corporation (MANIAC) is a

distributor of Japanese and European cars in the Philippines. It has 500 employees,
broken down as follows: 50 are holding managerial positions; 100 are holding
supervisory positions; 50 are office workers (25 are working at the Finance
Department, and 25 are working at the Personnel Department); and 300 are rank-and-
file positions. On February 6, 2014, three hundred seventy-five (375) employees held
an informal meeting where they agreed to form the Organization of Maniac
Employees (OME) for their mutual aid and protection. Of the 375 employees, 25 are
managerial, 50 are office workers, 50 are supervisors and 250 are rank-and-file
employees. On March 1, 2014, OME applied for registration with the Regional Office
Department of Labor & Employment. All the documentary requirements for
registration were attached to the application. However, the Regional Director denied
the application for registration on the ground that the organization is composed of a
mixture of managerial, supervisory and rank-and-file employees.

(a) Was the Regional Director correct in denying the registration of OME? Explain
your answer.
(b) Under the circumstances, what would be the appropriate remedy for OME?
Explain your answer.

ANSWER:

(a) The Regional Director was not correct in denying the application for registration of
OME. The mere fact that OME is a mixture of managerial, supervisory and rank-and-file
employees does not per se warrant denial of registration, because what was sought to be
registered was not a labor organization but a workers association intended merely for the
mutual aid and protection of its members.

(b) The appropriate remedy is to appeal the order of denial to the Bureau of Labor Relations
within 10 days from receipt of the order.

6. STARBEKS is a corporation engaged in the restaurant business with principal office

at Kalibo, Aklan. It has 300 waiters and kitchen staff. On February 1, 2014, the Bistro
Employees of Kalibo Integrated (BEKI), a registered labor organization claiming to
represent the waiters and kitchen staff, submitted its collective bargaining proposal
to STARBEKS. STARBEKS refused to entertain the proposals. Thus, on March 1, 2014,
BEKI filed a complaint for unfair labor practice (ULP) against STARBEKS for violating
the duty to bargain collectively. On March 2, 2014, another registered union, the
Trade, Industry, & Business Organization (TIBO), also claiming to represent the
waiters and kitchen staff, requested STARBEKS to recognize it as the exclusive
collective bargaining representative of the waiters and kitchen staff. STARBEKS
refused to recognize TIBO because it does not want to have a union in its
establishment.

(a) Did STARBEKS commit unfair labor practice when it refused to entertain the
collective bargaining proposals of BEKI? Explain your answer briefly.

(b) Did STARBEKS commit unfair labor practice in refusing to recognize TIBO as the
exclusive collective bargaining representative of the waiters and kitchen staff?

ANSWER:

(a) No ULP. STARBEKS can validly refuse to entertain the CBA proposals because BEKI,
despite its being a legitimate labor organization, has not been recognized or certified as
collective bargaining representative.

(b) No ULP. STARBEKS can validly refuse to recognize TIBO as collective bargaining
representative because recognition is supposed to be voluntary on the part of management.
Moreso, because the presence of another union claiming to represent the same bargaining
unit bars STARBEKS from extending voluntary recognition to any of the unions.

7. On January 15, 2014, Mr. QUICKIE, one of the workers of Mid-West Automotive Hub,
Inc. (MWAH), called his co-employees to a meeting to discuss the plan of action they
will take against the several labor standards violations committed by MWAH,
particularly, non-payment of 13th month pay, overtime pay, holiday pay and night
shift differential. Of the 400 rank-and-file workers, 300 attended the meeting. During
the meeting, the 300 workers unanimously agreed to form a union which they named
Transport Sector Union of the Philippines (TSUP). The following workers were
elected as the officers of the Union: Mr. QUICKIE-President; Mr. CLEAN-Vice
President; Mrs. FIELDS-Secretary; Mr. DONUT-Treasurer; and Mr. BEAN-Auditor. On
January 18, 2014, MWAH learned that the workers had organized a union, hence,
MWAH called Mr. QUICKIE, Mr. CLEAN, Mrs. FIELDS, Mr. DONUT, and Mr. BEAN to the
office whereupon, they were asked to confirm the formation of the union and to
further confirm the information that they are the officers of the union. Mr. QUICKIE,
Mr. CLEAN, Mrs. FIELDS, Mr. DONUT, and Mr. BEAN refused to confirm the requested
information, hence, MWAH dismissed them from employment. In reaction to the
move taken by MWAH, TSUP (comprising 300 rank-and-file workers), walked out of
their workplace, stationed themselves in front of the gates of the company, put up
barricades at the gates and prevented other workers from going inside the company
premises. MWAH was then forced to file a complaint to declare the strike illegal.
However, TSUP argued that their strike was valid because it was done in reaction to
the outright dismissal of the duly elected union officers amounting to union busting.
Was the strike staged by TSUP valid? Explain your answer briefly.

ANSWER:

The strike is not valid, because TSUP is not yet a legitimate labor organization. Only a
legitimate labor organization can declare a strike. Under the law, a strike can be declared
only by a duly certified collective bargaining agent or if there is no collective bargaining
agent, by a LEGITIMATE LABOR ORGANIZATION and only on the ground of ULP. In the case
at bar, while ULP has been committed, TSUP cannot validly strike. The only remedy under
the circumstances is to file a complaint for ULP.

8. Because of rampant theft of company property committed by the members of

Transport Sector Union of the Philippines (TSUP), the Mid-West Automotive Hub, Inc.
(MWAH) declared a lockout. MWAH filed the Notice of Lockout on March 1, 2014. The
lockout vote report was filed on March 15, 2014, and the lockout was staged on
March 31, 2014. TSUP filed a complaint to declare the lockout illegal. Is the lockout
valid or legal? Explain your answer briefly.

ANSWER:

The lockout is illegal because it is not based on the legal grounds for a lockout. There are
only two (2) grounds for declaring a lockout, namely: (a) Collective bargaining deadlock;
and (b) Unfair labor practice. Rampant theft by union members is not a ground for lockout.

9. Mazda-Audi-Nissan International Automotive Corporation (MANIAC) is a

distributor of Japanese and European cars in the Philippines. It employs 200 sales
personnel and 100 office employees. On February 1, 2014, MANIAC hired REMY
MARTIN as gardener. His principal task was to maintain the landscape of the
company premises. On March 1, 2015, MANIAC terminated the employment of REMY
MARTIN and replaced him with another gardener. Claiming that he cannot be
dismissed without just cause, REMY MARTIN filed a complaint for illegal dismissal.
During the hearing, MANIAC took the position that it can dismiss REMY MARTIN
anytime even without just cause because he was not a regular employee but a casual
employee. If you were the Labor Arbiter, how will you rule on the complaint? Briefly
explain your answer.

ANSWER:

I will rule in favour of REMY MARTIN. While it is true that he is a casual employee, he has
attained the regular status as casual employee because he has already served for more than
one year. As such he cannot be dismissed without just cause as long as the activity lasts. In
this case, the activity did not cease to exist. In fact, MANIAC replaced him with another
gardener.

10. Mazda-Audi-Nissan International Automotive Corporation (MANIAC) is a

distributor of Japanese and European cars in the Philippines. It hired JOHNNIE
WALKER as its Chief Mechanic. After serving for five (5) years, MANIAC terminated
the employment of JOHNNIE WALKER for loss of confidence, for which reason, he filed
a complaint for illegal dismissal. While waiting for the decision on his complaint,
JOHNNIE WALKER was able to land a job at Honda Cars Philippines. After the lapse of
one (1) year, the Labor Arbiter rendered a decision declaring the dismissal of
JOHNNIE WALKER illegal and ordering his reinstatement with full backwages.
Considering that JOHNNIE WALKER is now employed with Honda Cars Philippines,
can he still validly ask of the enforcement of the reinstatement order? Briefly explain
your answer.

ANSWER:

Yes, because an employee who was illegally dismissed cannot be denied the right to
reinstatement simply because he has obtained employment elsewhere.