MAGIC AREAS IN LABOR, LAWS Dean ED VINCENT S. ALBANO and Prof. ED VINCENT A. ALBANO III Review Director / Proprietor Due process in dismissal of employees. Pursuant to the company policies of the petitioner, an employee wh jaorded a formal hearing or conference. An employee had eath shortages, He was terminated. isthe termination valid? Why? pallerrrtes tut the employer is liable to pay damages to the employee because there was violation of its own company Policy prior to termination, Jurisprudence dictates that it is not enough that the em 0 is sought to be terminated should be Dut there was a mere informal inquiry. () a formal hearing or conference becomes mandatory only vihen re evidentiary disputes exists ora company rule or practice rena (©) {6) the “ample opportunity to be heard” standard in the Labor Cede Prevails over,the*hearifig'and conference” requirement in the implementing rules and regulations. a lee the peoeen nt andatory characterization is premised on the facta comp rules and regulations which regulate the procedure and Tequirements for termination, are generally binding on the employer. {Suico v, NLRC, et al., GR. Nos. 146762, 153584 and 163793, January 30, 2007, 513 SCRA +325). f £ ln this relation, case law states that an employer who termisatee o> Invalid procedure is lable to pay the latter notin GR.No, 187722, June 10,2033) etfployoe for a'valid cause but does so through a! damages. (Surigao del Norte-Electric Cooperative, Ine, etal v, Gonzaga, wa Agabon case, ay aryaaaton ¥. NLRC CAgabon), G.R. No, 158693, November W7, 2004, "442 SCRA S73, the Court Pronounced that Sritenetlamissal is fora just cause the lack of statutory dye Beess should not nuliy aoe dismissal, or render i illegal, GR Ne ay cowever. the employer should indemaly the eftgloyes for the vicistion he, statutory rights. (Reta v. NLRC. danse. 122100, May 27, 1994, 232 SCRA 613). Thussin Agaban, the employes wes orle aret pay the emplayee nominal damages in the amount of P30,000.00. [ gee proced on ic meaame Principle should apply fo te casa dt bar forthe reason that an employers breach of ts own Stands, pe ecedure is equally violative ofthe tabater's rights, albeit not statutory in source. Hence, although the dismissal Stands. the Court deems appropriate to award cheémployee hominal damages ntheamoet Peobe General manager, not liable. = sre beret ot angnaktt fhe empl doesiot stand to be soldarly lable with the company for the same since bad th or ete f any Indiogon that he either (a)assented to a patently unlawfulac of theo () is guilty of McLeod vena neligence olrerng ts affairs! (Carag v. NLRC, GAR No. 147590, Apel 2 tee en ee 28, cling ote rasan CR NOAQOHe7Abaftry 23 2007, siz SCRA 222 and Spouse Santos NLRC Moe a eee 918 [1998))4¢ f ed ? yaw at Sbjec tb the State's eorolary right to review its determination, (Espnav. Court of ‘Appeals, 548 Phil Boa No eebas the right to regulate the business and contro is every aspee (See United trea ies ee EO, , 658 SCRA 159 and Tinio v. Court of Appeals, G.R. No. 171764, june 8, 2007, \cluded.in this management right is the freedom to clase or cease its ‘operations for any reason, as long as it oar lover faithfully complies with the substantive and procedural requirement fal oe by = spina v Court of Appeals; Poseidon Int. Maritime Services, in. Tamal et, GR No Spent Requisites forthe’ Validity employment. | £. The decision to close or cease operations must be bona fide in character; 2. Service of written notice on the affected employees and on the Department of Labor and Em; Af least one (1) month prior to the effectivity of the termination; and 5. Payment to the affected employees of termination or separation Pay equivalent to one (1) month pay or at {east one-half (1/2) month pay for every year of service, whichever Iy higher. (Ramirez v, Mar Fishing Co,, Inc, Sataoar 68208. June 13,2012, 672 SCRA 136 and Marc I Marketing Ine v.Joson, GICNo 171590 coe 12, 2011, 662 SCRA 35). of cessation of business operations as valid ground for termination of overseas ;ployrment (DOLE) In this case, the seafarers were nat illegally terminated for the following reasons: 2, paetate cessation of business the seafarers sil receivetheir fll slaries undl they were repatriated: 2. The employer did not hire another group of seafarers to replace therm: 1 | Aancz016 maple Areas in Labor Laws (combined) /EVSAVerysHad the employer intended to stop its Ashing operations, simply to:terminate, the employees it would have Immediately repatriated then in order that it may hire other seafarers to replace them. (Poseidon Int. Maritime Services, Ine. v. Tamala, etal, GR. No. 186475, June 26, 2013), SEPARATION PAY Validly dismissed employee is entitled to separation pay. The leading case of Phillppine Long Distance Telephone Co. v. NLRC, GR, No. L-80609, August 23, 1988, 164 SCRA 671, enunciated the ruling that separation ay 'as a measure of social justice” is allowed in those instances where the ‘employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. The case of Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. NLRC. G.R. Nos. 158786 & 158789, 158798-99, October 19, 2007, 537 SCRA 171, expanded the doctrine laid down in PLDT by adding dismissals other than those under Art. 282 of the Labor Code, like willful disobedience, gross and habitual neglect of duty, fraud or willfl breach of trust, and conimission of a crime against the employer or his family which would preclude award of separation pay. ‘The award of separation pay is authorized inthe situations dealt with in Article 283 and 284 of the Labor Code, but not in terminations of employment based on instances enumerated in Article 282. (Central Philippines Bandag Retreaders, Inc. v. Dlasnes, GR. No. 163607, July 14, 2008, S58 SCRA 194, citing San Miguel Corporation v, Lao, 433: Phil. 890 {2002}), Article 282 states that: ART. 282. Termination by employer. - An employer may terminate an employment for any of the following causes: (@) Serious misconduct or willful disobedience by the employee of the lawful orders of his ‘employer or representative in connection with his work: (0) Gross and habitual neglect by the employee of his dutles; (6) Fraud or willful breach by the employee ofthe trust reposed in him by his employer or duly authorized representative; (4) Commission ofa crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and {e) Other causes analogous tothe foregoing. (Universal Robina Corp. et al. v. Castillo, No. 189686, july 10, 2013) Central Philippines Bandag Retreailers, Inc. cautioned labor tribunals in indiscriminately awarding separation pay ‘as ameasure of social justice, in this wise: xxx Labor adjudicatory oificials and the CA must demur the award of separation pay based. ‘on social justice when an employee's dismissal is based on serious misconduct or willful disobedience; gross and habitual neglect of duty; fraud or willful breach of trust; or commission of a crime against the person of the employer or his immediate family—grounds under Art. 282 of the Labor Code that sanction dismissals of employees. They must be most judicious and circumspect in awarding separation pay or financial assistance as the constitutional policy to provide full protection to labor is Temporary “off-detail” or the period of time security guards are made to wait until they are transferréd or assigned to anew post or client does not constitute constructive dismissal, so long as such status does not exceed six months. ‘The floating status situation was considered by this Court as a form of temporary retrenchment or lay-off Ie s that period when security guards are in between assignments or when they are made to walt after being relieved trom a brevious post until they are transferred to a new one. ket ‘The Court has applied Article 292 of the Labor Code by analogy to set the period of xeraptary Jay-off to a maximum of six months. Consequently, the DOLE issued DO 14-01, providing in Section 6.5 in relation to Set. 93, that the lack of service assignment for a continuous period of six months is an authorized cause for the,termination.of the employee, who is then entitled to a separation pay equivalent to half month pay for every year of ‘The Eniployer shall still serve a written notice on the employee and the DOLE one month before the intended date of termination. However, his lack of assignment for more than six months cannot be attributed to the employer becalise the latter had already offered Serrano a Position in the general security service since there were no available clients requiting positions for VIP security It was only the employee who declined the position because it was not the post that sulted his preference. (Exocet Security and Allied Services Corporation, etal. v. Armando D. Serrano, G.R No. 198538, September 29, 20:14, Velasco, jr. |) 4 Res judicata does not bar the filing of complaints for illegal dismissal, ln SME Bank, Inc. v.De Guzman (G.R. No, 184517, October:8, 2013), the SC held thatthe acceptance of separation pay {s an issue distinct from the legality ofthe dismissal of the employees. The conformity ofthe employees to the corporation's act of considering them as terminated and their subsequent acéeptance of separation pay does not remove the taint of illegal dismissal. Acceptance of separation pay does not bat the, employees from subsequently contesting the legality of their dismissal, nor does it bar them from challenging'the legality of theit‘separation from the service. In the absence of the third and fourth requisites, the appellate court should have proceededito rule on the validity of petitioners’ termination. (Rosales ¥. New ANJH, Enterprises, G.R, No. 203355;Allgusb16, 2015, Velasco, Jr. ]) Ten-day period to file MR. Sor 7 is Motions for reconsideration of any deeision, resolution or order of the NLRC should be filed within ten calendar days from receipt of decision. “= | ‘The employer admittet,receiving a copy offthe May 31, 2006 NLRC resolution on June 16, 2006, however it only fled its motion for reconsideration ‘on July 3, 2006, or 17 days after the receipt. As provided in Section 15, Rule Vil of the NLRC 2005 Rules of Procedure, riitions for reconsideration of any decision, resolution or order of the Commission should be filed with ten calendar days from recpipt of decision, Procedural rules hay be relaxed but nly on valld and comeeling reasons. The Barednvocation the interest of substantial justice ine & not core magic ead on automatically compel the Court tg/Suspend the procedural rules. Procedural rules are not to be belittied, let alone dismissed simply because their oscflenfance may Navesresulted in prejudice toa partys substantial rights. Uter lsregard ofthe rules cnnot be july ‘zeth by harping on the\policy of liberal construction. (Daikoku Electronics Phils, Inc. v. Alberto J. Raza, GR. No. ie 512009, Velasco, J J) CONSTRUCTIVE DISMISSAL Fin A Construct ‘arises when the unwarranted acts of the employer become intolerable, Cor dismissal occurs not when the employee ceases to report for work, but when the unwarranted acts of the employer are committed to the end that the employee's continued employment shall become so intolerable. in these difficult times, an employee may be left with no choice but to continue with his employment-despite abuses committed against him by the employer, and even during the pendency of a labor dispute between them. This should not be taken against the employee. Instead, it must share the burden of his plight, ever aware of the precept that necessitous men are not free men. In this case, the employee was transferred to another post in the company due to unresolved charges. It was found. out that the transfer was due to her filing a complaint of impropriety against her supervisor, who still had supervision over her despite the transfer. The transfer is null and void for lack of just causé. Also, the transfer is a penalty imposed on a charge that has not yet been resolved. Definitely, to punish one for an offense that has not been proved is truly unfair; this is deprivation without due process. ‘The fact that Francisco continued to report for work does not necessarily suggest that constructive dismissal has not occurred, nor does it operate as a waiver. Constructive dismissal occurs not when the employee ceases to report for work, but when the unwarranted acts of the employer are committed to the end that the employee's continued employment 110 | asnczo26. Magic Areas in Labor Laws (combined) EVSA/erysshall become so intolerable. In these difficult times, an employee may be left with no choice but to continue with his, ‘employment despite abuses committed aga'nst him. by the employer, and even during the pendency of a labor dispute between them. This should not be taken against the employee. Instead, we must share the burden of his plight, ever aware of the precept that necessitous men are not free men. (The Orchard Golf & Country Club v. Francisco, G.R, No. 178125, March 18, 2013) Concept of “arising out of and in the course of employment.” A seafarer died of drowning while on shore leave and had 20% alcohol found in his urine upon autopsy of his body. In the claim for compensation, it was contended he death happened in the course of employment, because ifnot for his employment he could be somewhere else and was not on shore leave. Is the contention correct? Why? Answer: No, While his employment relationship with the company did not stop but continued even while he was on shore leave, the contract provided that itis not enough that the death occurred during the term of the employment contract, but ust be work-related to be compensable, He was not in the performance of his duty as a seaman, but was doing an act for his own personal benefit at the time of the accident The cause of his death at the time he was on shore leave, which was drowning, was not brought about by a risk which was only peculiar to his employment as a seaman. (Sy v. Phil. Transmarine Carriers, Inc, etal, G.R No. 191740, February 11, 2013) Meaning of the phrase “arising out of and in the course of employment." in ‘The two components of the coverage formula — “arising out of" and “in the course of employment” —“are said to bee separate tests which must be independently satisfied: however, it should not be forgotten that the, basic concept of compensation coverage is unitary, not dual, and is best expressed in the word, “work-connectiOn, because an uncompromising insistence on an independent application of each of the two portions of the testcan, In céftain cases, exclude clearly work-connected injuries. The words "arising out of” refer wo the origin or cause ofthe accident, and are descriptive ofits character, while the words “in the course of” refer to the time, place and circimstances ainder which the accident takes place ae ‘As matter of general proposition, an injury or accident Is sald to arise “inthe course of employment" when ittakes place within the period of the employment, at a place where the employee reasonably may be, and:while he is Fulfilling his duties or is engaged in doing something incidental thereto. (Iloilo Dock & Engineering Co. v. Workmen's Compensation Commission, No. L-26341, November 27, 1963, 26 SCRA 102; 135 Phil. 95 [1968]) © ILLEGAL DISMISSAL, Rights to backwages and reinstatement; separate and distinct reliefs i ‘An employer is guilty of illegal dismissal when it placed petitigners on fIdating status beyond the reasonable six- month period after the termination of their service contract with Banco de Oro. Temporary displacement or temporary offdetail of security guard is, generally, allowed in a situation where a security agency's client decided not to renew their service contract with the agency and no post is available for the rélteved security guard. Such situation does not normally result in a constructive dismissal. Nonetheless, whenthe “>, floating status lasts for more than six (6) months, the employee may,be considered to have heen constructively dismissed. No less than the Constitution guarantees the rightof workers to seturity of tenure, thus, employees can only be dismissed for justor authorized causes and after they have been afforded the due process of law. Rights of unjustly dismissed employee. Settled is the rule that thatanempléyee. who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges, and to his full backwages, Inclusive of allowances and to his other benefits or their monetary equivalent computed from the time his compensation was withheld up-to the time of actual reinstatement If reinstatementis not possible, however, the award of separation pay is proper. (Reyes,et al. v. RP Guardians Security Agency. Inc. GR. No. 193756, April 10,2013) Baclwages and reinstatement are separate and distinct reliefs given to an illegally dismissed employee in order to alleviate the:économic damage brought about by the employee's dismissal. “Reinstatement is a restoration to a state from ‘which one has-been removed of Separated” while “the payment of backwages isa form of relief that restores the Income that was lost by reason of the unlawful dismissal.” Therefore, the award of one does not bar the other. “ogein'the case of Alling v. Feliciano, citing Golden Ace Builders v. Talde, the Court explained: ». This,an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. Tie two reliefS provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is ‘granted, Ini-effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or ‘separation pay ifeinstatement is no longer viable, and backwages. “The normal consequences of respondents’ illegal dismissal, then, are reinstatement without loss_of seniority-rights,_and_payment. of backwages-computed from-the-time-compensation-was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay isin addition to payment of backwages. (Reyes, etal. v. RP Guardians Security Agency, Inc, GR. No. 193756, April 10, 2013) UNION When there is union busting; Unfair Labor Practice (ULP). Under Article 276(c) of the Labor Code, there is union busting when the existence of the union Is threatened by the ‘employer's act of dismissing the former's officers who have been duly-elected in accordance with its constitution and by- laws. On the other hand, the term unfair labor practice refers to that gamut of offenses defined in the Labor Code which, at their core, violates the constitutional right of workers and employees to self-organization, with the sole exception.of 42. | a8Rc2026.Magic Areas in Labor Laws (combined) /EVSAVerysArticle 257(9) (previously Article 248(f]). As explained in the case of Philcom Employees Union v. Philippine Global Communications, G.R, No. 144315, July 17, 2006 citing Great Pacific Life Employees Union v, Great Pacific Life Assurance Corporation, G.R. No. 126717, 11 February 1999, 303 SCRA'113; and Cesaria A: Azucena, Jt, Il The Labor Code with Comments and Cases 210 (5th ed, 2004]: Unfair labor practice refers to acts that violate the workers’ right to organize. The’ prohibited acts are related to the workers' right to self-organization and to the observance of a CBA. Without that element, the acts, no matter how unfair, are not unfair labor practices. The only exception is Article 248(f) (now Article 257(9}. (Pepsi-Cola Products Phils, Inc. v. Malon, et al, GR. No. 175002 February 28, 2013) UNION STRIKE Cancellation of certificate of registration. To decertify a union, it is not enough to show that the union includes ineligible employees in its membership. It ‘must also be shown that there was misrepresentation, false statement, or fraud in connection with the application for registration and the supporting documents, such as the adoption or ratification of the constitution and by-laws or amendments thereto and the minutes of ratification of the constitution or by-laws, among other documents: According to Art. 239(a) ofthe Labor Cade, the grounds for cancellation of Certificate of Registrationiof Union is the commission of Fraud and Misrepresentation in connection with the adoption or ratification of the Union's eénstitution and like documents. After a labor organization has filed the necessary registration documents, itbecomesmandatory.for the Bureau of Labor Relations to check if the requirements under Art 234 of the Labor Code have-been complied with. The issuance to the Union of Certificate of Registration necessarily implies that its application for registration and the Supporting documents thereof are prima facie free from any vitiating irregularities. (SS. Ventures International, Inc. v. $S. Ventures Labor Union, et al, GR.No. 161690, july 23, 2008, Velasco, Ir. J) : Union security clause. In terminating the employment of an employee by enforcing the union security cause; ‘theieimployer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union Js requesting for the enforcement of the uunion security provision in the CBA; and (3) there is sulficient evidence to support the union's decision to expel the employee from the union. These requisites constitute Just cause for terminating an gaployee based on the CBA's union security provision, (Alabang County Clb, In, v. National Labor Relaions Comslon ef ACR No. 170287, Februaty 1, 2008, Velasco, Jr., |) ea Categories of strike. Aig : Noted authority on labor law, Ludwig Teller, lists six (6) categories ofa illegal strike, vi: (1) [when it] Is contrary to a specific prohibition of law, such as strike by eraployees perforraing governmental functions; or (2) [when it} violates a specific requirement of law(, such as Article 263 of the Labor Code on the requisites of a valid strike]; or (3) {when it] is. declared for an unlawful purpose, such as inducingithe emplayer to commit an untalr labor practice against non-union ‘employees; or (4) {when it] employs unlawful means in the pursult ofits objective, such as a widespread terrorism of non- strikers (for example, prohibited acts under Art: 264(d)iefthe Labor Code}; or (5) [when It] is declared in violation of an existing Injunction such as injunction, prohibltion, or order issued by the DOLE Secretary and the NLRC under Art. 263 of the Labor Code]; or (6) [when it} is contrary'to argexisting agreement, such as a no-strike clause or conclusive arbitration clause. (Toyota Motor Phils.. Corp. Workers:Assaciatlon (TMPCWA) v. National Labor Relations Commission, et al, G.R. Nos. 158798-99, October 19, 2007, Velascoffry)) 5 Requirements before strike. “ay £ ‘The Union failed to comply with the following requirements: (1) a notice of strike fled with the DOLE 30 days before the intended date of strike, o£15 days in case of unfair labor practice; (2) strike vote approved by a majority ofthe total union membership inthe barfaining unit concerned obtalned by secret ballot in a meeting called for that purpose; and (3) notice given to the DOLE of the fesults6f the voting at least seven days before the intended strike. These requirements are mandatory andthe failure of 4 union to comply with them renders the strike illegal. The intention of the law in requiring the strike notice and tl ‘report Is to reasonably regulate the right to strike, which is essential to the attainment of Jeteabste policy objective in the law. (Toyota Motor Phils, Corp. Workers Association (TMPCWA) v, National thor Comtinission, etal, G.R. Nos, 158798-99, October 19, 2007, Velasco, fr. J) during the strike aid there is substantial proof of their participation. (Magdala Multipurpose & Livelihood Cooperative v. Kilusang Manggagawa ng LGS, GR. No, 191138-39, October 19, 2011, Velasco, Jr.) Posting of bond; procedure & jurisdiction. ‘The posting of a bond is indispensable to the perfection of an appeal in cases involving monetary awards from the Labor Arbiter’s decision. However, the rule may be relaxed considering the substantial merits of the case and to prevent miscarriage of justice. (Marticio Semblante, eval. . Court of Appeals, et al, GR. No, 196426, August 15, 2011, Velasco, Ir) ‘The NLRC has wide discretion in determining the reasonableness of the bond for purposes of perfecting on appeal. In Garcia v. KJ Commercial (6.R. No, 196830, February 29, 2012), the SC explained: The NLRC has full discretion to grant or deny the motion to reduce bond, and it may rule on the motion beyond the 10-day period within which to perfect an appeal. In order to give full effect to the provisions on motion to reduce bond; the appellant must be allowed to wait for the ruling of the NLRC on the motion even beyond the 10-day period to perfect an appeal. If the NLRC grants the motion and rules that there is indeed meritorious ground and that the amount of the bond posted is reasonable, then the appeal is perfected. ifthe NLRC denies the motion, the appellant may still fle a motion for reconsideration as provided under Section 12 | aenczor6.magic Areas in Labor Laws combined) /evst/erys45, Rule Vit of the Rules. If the NLRC grants the motion for reconsideration and tules that there is indeed meritorious round and that the amount of the bond posted is reasonable, then the appeal is perfected. If the NLRC denies the motion, then the decision of the labor arbiter becomes final and executory. In any case, the rule that the filing of a motion to reduce bond shall not stop the running of the period to perfect an appeal is not absolute. (Rosales v. New AINJ.H. Enterprises, GR. No. 203355, August 18, 2015, Velasco, jr, |) UNFAIR LABOR PRACTICE (ULP) Qz The Union claimed that Bankard, in implementing its MRP which eventually reduced the number of employees, yiolated Art. 245(¢) of the Labor Code which states that it shall be unlawful for an employer to commit any of the following ULP by contracting out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization. Due to the reduction, it contracted out jobs held by former employees to other contractual employees. As a result, the number of union embers was reduced, and the number of contractual employees who were never eligible for union membership for lack of qualification, increased. is the contention correct? Why? ‘Answer: No, The prohibited acts considered as ULP relate to the workers’ right to self-organization and to the observance of a CBA It refers to “acts that violate the workers’ right to organize." (Cuil v. Eastern Telecommunications Philippines, Inc, GR. No, 165381, February 9, 2011, 642 SCRA 338, 360, citing Tunay na Pagkakaisa ng Manggagawa sa Asia Beet v. Asia Brewery, inc, G.R, No. 162025, August 3,2010, 626 SCRA 376). ef ‘Without that element, the acts, even if unfar, are not ULP. (General Santas Coca-Cola Plant Free Wéckers,tinion- Tupas v. Coca-Cola Battlers Phils. Inc (General Santos City), GR. No. 178647, February 13, 2009, 579 SCRA'414, 419, citing Phileom Employees Union v.Philippine Global Communication, 527 Phil 540, 557 [2006]). Thus, artemmployer fay only be held lable for unfair labor practice if it can be shown that his acts affect in whatever manner the right of his employees to selF-organize. Hf The program might have affected the number of union membership because-of'the eniplayees’ voluntary resignation and availment of the package, but it does not necessarily follow that Bankard indeed purposely sought such result. it must be recalled that the MRP was implemented as a valid cost-cutting theasure well within the anvbit of the ay called management prerogatives. Bankard contracted an independent agency to meet btisiness exigencies, In the absence of any showing that Bankard was motivated by ill will, bad faith or malice, or that it was aimed at interfering with ts employees right to self-organize, it cannot be said to have committed an act ofunfair labor practice. (General Santos Coca, Cola Plant Free Workers Union-Tupas v. Coca-Cola Botters Phil, Ine. (General Sahtas City) supra). Contracting out of services is an exercise of business judgment ar management prerogative. Absent any proof that ‘management acted in a malicious or arbitrary manner, the Court will notinterfefe with the exercise of judgment by an employer. Furthermore, bear in mind that ULP is punishable with both arid/or‘criminal sanctions. As sueh the party so alleging must necessarily prove it by substantial evidence. The Union, a8 earftet noted, failed to do this. Bankard merely validly exercised its management prerogative. Not shown to haye acted maliciously o arbitrarily, no act of ULP can be imputed against it. (Bankard, Inc. v, NLRC, et al, GR, No. 171664, March 6, 2013) REINSTATEMENT a) Concept of reinstatement and strained relationship. f Reinstatement, as a labor law conceit, means the adrhission of an employee back to work prevailing prior to his dismissal; restoration to a state or positiom from whith one had been removed or separated, which presupposes that there shall be no demotion in rank and/or diminution of salary, benefits and other privileges; if the position previously occupied ‘no longer exists, the restoration shall be:to.@ Substantially equivalent position in terms of salary, benefits and other Privileges. Management's prerogative to tratigfer ahi employee from one office or station to another within the business establishment, however, genefally remains unaffécted by a reinstatement order, as long as there is no resulting demotion or diminution of salary and other Benéfits.and/or the action is not motivated by consideration less than fair or effected as a punishment orto get backat the reinstated employee. Doctrine of strained relationship. Reinstatement is no longer viable where, among other things, the relations between the employer and emiployee have peer so severely strained, that itis not in the best interest of the parties, nor is it advisable or practical to orvfer reinstatement, Under the doctrine of strained relations, payment of separation pay is considered an acceptable alternative to rei -wherrthe latter option is no longer desirable or viable. Indeed, ‘separation pay is made an alternative relief in Ubu Feinstatément in certain circumstances, such as: (1) when reinstatement can no longer be effected in view of the Passage’ of lotg period of time or because of the realities ofthe situation; (2) reinstatement is inimical to the employer's Incerests (rei is no longer feasible; (4) reinstatement does not serve the best interests ofthe partes nvokeee (5) the employer:ty prefudiced by the workers’ continued employment; (6) facts that make execution unjust or inequitable have superveneds or (7) strained relations between the employer and the employee. Rights of employee in case of strained relationship. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. In leu of reinstatement, petitioner is entitled to separation pay equivalent to one (1) month salary for every year of service reckoned from the time he commenced his employment with ‘TAWTRASCO unt finality of this Decision. In addition, petitioner is entitled to backwages and other emoluments due him from the time he did not report for ‘work on March 31, 2007 until the finality of this Decision, Said backwages and emoluments shall earn 12% interest from finality of this Decision until fully paid. The payment of legal interest becomes a necessary consequence of the finality of the Court's Decision, because, reckoned from that time, the said decision becomes a judgment for money which shall earn {interest at the rate of 12% per annum. (Bafares v. Tabaco Women's Transport Services Cooperative, et al, G.R. NO. 197353, April 1, 2013; Torres v. Rural Bank of San Juan, Inc. et al, G.R. No. 184520, March 13, 2013) 413 | A@RC2016 Magi Areas in Labor Laws (combined/EVSAVerysILLEGAL RECREUITMENT When there is illegal recruitment; RA 10022, Sec. 5. Ilegal recruitment is committed when two (2)elements concur: Fist, the offender does not have the required license or authority to engage in the recruitment and placement of workers. Second, the offender undertook (a) recratanont Same code, Illegal recruitment is qualified into large scale, when three or more persons, individually or as group, are victimized. (People of the Philippines v. Gloria Bartolome, G.R. No. 129486, july 4, 2008, Velasco, Ir ]) Elements of syndicated illegal recruitment. ‘The elements of syndicated illegal recruitment are: (a) the offender undertakes any activity within the meaning of Feerultment and placement as defined under the Labor Code; (b) he has no valid license or authority to lawtully engage in fecruitment and placement: and (c} the illegal recruitment is committed by a group of three or more persons conspicg or Gonfederating with one another. (People of the Philippines v. Rodolfo Gallo y Gadot, et al, GR. No. 187730, June 29, 2610, Velasco, Jr. I) Application of Art. 110 of the Labor Code. 4 Art 110 of the Labor Code applies only to cases of bankruptcy and liquidation, Likewise, the conguti@iice and Preference of credits properly come into play only in cases of insolvency. ? Art 110 of the LC applies only to cases of bankruptcy and liquidation. Likewise, the abovementioned articles ofthe Givil Code on concurrence and preference of credits properly come into play only in cases of insolvency. Since there Is he bankruptcy or insolvency proceeding to speak of, much less a liquidation of the assets of DWUT, the Union caniot look to said statutory provisions for support. (Associated Labor Union (ALU), et a. v.CA, etal, GR: No, 156882, October 31, 2008, Velasco, Jr. 1) HP EMPLOYEE-EMPLOYER RELATIONSHIP Four elements to determine employee-employer relationship; 4-fold test, Whenever the existence of an employment relationship is in dispute,.foult-elements constitute the reliable yardstick: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal: and (2) the employer's power to control the employee's conduct. It is the so-called. "contrél test” which constitutes the mose important index of the existence of the employer-employee relationship that 4,.whether the employer controls or hes reserved the right to control the employee not only as to the result of the Work to be'done but also as to the means and methods by which the same isto be accomplished. (Gregorio V. Tongco v.‘TheManufacturers Life Insurance, Co. (Phils), Inc, et al, G.R. No, 167622, November 7, 2008, Velasco, jr.) oo f ‘The power of control is determinative of the existence of employer-employee relationship. ‘4 fundamental principle in Philippine labor law is the appiteation of the four-fold test in determining the existence of an employer-employee relationship, thus: (1) selection and engagement; (2) payment of wages; (3) power to dismiss; and (4) power of control over the means and methods by which the work isto be accomplished. There are, however, Instances when these elements are not exercised by a single-persanor entity! There are cases where one or more of the sald factors are assumed by another entity, for which reason, the Court made ft clear that of the four tests mentioned, itis the power of control that ts determinative. One such.tnstancefis whenevet an employer supplies workers to another pursuant to a contracting agreement, Le, job contracting. rr Per DOLE Order No. 3, Seriesaf2001, there ts contracting or subcontracting whenever an employer, referred to as the principal, farms out the performance afia.part of its business to another, referred to as the contractor or subcontractor, and for the purpose of undertaldiigthe principal's business that is farmed out, the contractor or subcontractor then employs its own employees. in such n,arrangement, the four-fold test must be satisfied by the-contractor or subcontractor, Otherwise, it is the principal that shall, be considered as the employer. (Marian B. Navarette v. Manila International Freight Forwarders, Ine, etal, GR-200580)February'11, 2015, Velasco, J.J) Project em; . ‘Thelprincifal test for determining whether one isa “project employee," as distinguished from "regular employee,” 4s whlteher he was assigned'to carry out "a specific project or undertaking” the duration and scope of which were specified atthe time the employes was engaged for that project. cag ms oCroee employees are coterminous with the projec and may be terminated upon the end or completions ofthat project or project phase for which they were hired. Regular employees, in contrast. enjay security of ‘tenuresanid a@tézentitled to hold on to their work or position until their services are terminated by any of the modes recognized under SieLabot Code. (Equipment Technical Services (ETS), etal. v. CA, etal, Gt No, 157680, October 8, 2008, Velasco eo 2 When there is labor-only-contracting. “Respondents, by accepting the conditions of the contract, cannot now argue that they were illegally dismissed when their contracts were not renewed after expiration. A person is considered engaged in legitimate job contracting or subcontracting if the following conditions concur ‘The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof ‘The contractor or subcontractor has substantial capital or investment; and. ‘The agreement between the principal and contractor or subcontractor assures ‘the contractual employees entitlement to alt Iahor and aceupational eaCety and health atandards, free exercise of the right wo self-organtaaion, Security of tenure, and social and welfare benefits 14 [anncz016 sag Areas in Labor Laws (combined) /EVSA/erys‘The termination of respondents’ employment with the Iabor-only-contractor was simply brought about by the expiration of their employment contracts. (Fonterra Brands Phils. Inc. v. Leonardo Largado, etal, G.R. No. 205300, Marc 18, 2015, Velasco, J. }) Labor-only-contracting. ‘There is “labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the persof or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. (W.M. Manufacturing, Inc. v. Richard R. Dalag, etal, G.R, No. 209418, December 7, 2015, Velasco, rJ) ‘The basis for determining the substantiality of a company’s “capital” rests not only thereon but also on. the tools and equipment it owns in-relation to the job, work, or service it provides. DO 18-02 defines “substantial capital or investment” in the context of labor-only contracting as referring not only to a contractor's financial capability, but also encompasses: the: tools, equipment, implements, machineries and work premises, actually and directly used by the Contractor or subcontractor in the performance or completion of the job, work or service contracted out. ‘SSS LAW SSS Law (R.A. No. 8282) 4 , ‘The term “parents” in the phrase “dependent parents” in Article 167)] of the Labor Code is used ‘and ought to be taken in its general sense and cannot be unduly limited to “legitimate parents.” j ‘The rule limiting death benefits claims:to the legitimate parents is contrary to law. Rule XV, Sec. 1(c)(1) of the Amended Rules on Employees’ Compensation deviated from the clear language of Art. 167'()) of the Labdr Code when it interpreted the phrase “dependent parents” as “legitimate parents os ‘When the law does not distinguish, one should not distinguish. Plainly, "dependent parents! are parents, whether legitimate or illegitimate, biological or by adoption, who are in need of support or assistance. Article 167 ()), as couched, clearly shows that Congress did not intend to limit the phrase "dependent parents" 0 saely legitimate parents, Article 167 provides that "in their absence, the dependent parents and subject to the restrictions imposed on dependent children, the iMegitimate children and legitimate descendants who are secondary beneficiaries.” Had ithe lawmakers contemplated “dependent parents” to mean legitimate parents, t would have simply said destendants,and not “legitimate descendants.” (Bernardina P. Bartolome v. Social Security System, eta, G.R. No, 192531, November 12; 3034, Velasco, jr. ]) Employees compensation. ‘ tes sufficient that there is a reasonable linkage between the disease sitffered by the employee and his work to lead a rational mind to conclude that his work may have contributed ta.the establishment or, atthe very least, aggravation of any pre-existing condition he might have had. “a : Deemed incorporated into the contract of employmelitare the provisions of the 2000 POEA-Standard Employment Contract. Sec. 20(8) provides that illnesses not listed in Sec. 32 are disputably presumed as work-related. David suffered from malignant fibrous histiocytoma (MPH) in his eft thigh: MPH is not one of the diseases enumerated under Sec. 32 of the POEA-SEC. This disputable presumption works, in favor of the employee pursuant to the mandate under EO 247 under which the POEA-SEC was created: "to secure’the best tetms and conditions of employment of Filipino contract workers and ‘ensure compliance therewith” and "to promate and protect the well-being of Filipino workers overseas.” Hence, unless contrary evidence is presented by theseafaret’s employer/s, this disputable presumption stands. David showed that part of his duties, a8 a Third Officer of the crude tanker M/T Raphael involved “overseeing the loading, stowage, securing and uilgeding of cargoes? As a necessary corollary, David was frequently exposed to the crude oil that M/T Raphael was carrying, {thas been regarded that the hazardous chemicals in crude oll can possibly contribute to the formation of cancerous masses. David has provided more than a reasonable nexus between the nature of his job and the disease that manifested-ftself on the sbxth month of his last contract with respondents, (Jessie V. David, etc. v. OSG Ship Management Manila, Inc, etaly GR. No. 197205, September 26, 2012, Velasco, J.) Beneficiaries under the SSS Law. 2° typs{K) Beneficiaries «The dependent spouse until he or she remarries, the dependent legitimate, legitimated or legally adopted, and illegitimate children, who shall be the primary beneficiaries of the member: Provided, That the dependent egeitecbiiren shall be enttied to fifty percent (50%) of the share of the legitimate, legitimated or legally adopted child¥en:*Provided, further, That in the absence of the dependent legitimate, legitimated children of the member, his/her dependént!iegikimate children shall be entitled to one hundred percent (100%) of the henefits. In their absence, the dependentparenits Wlto‘stall be the secondary beneficiaries of the member. In the absence of all the foregoing, any other person desighatéd by the member as his/her secondary beneficiary. ‘applying Section 8(e) and (k) of R.A. No. 8282, itis clear that only the legal spouse of the deceased-member is Qualified to be the:beneficiary of the latter's SS benefits. in this case, there is a concrete proof that Edgardo contracted an earlier marriage with another individual as evidenced by their marriage contract, Edgardo even acknowledged his married status when he filled out the 1982 Form E-4 designating Rosemarie as his spouse. Although the SSC is not intrinsically empowered to determine the validity of marriages, it's required by Section 4(b) (7) of RA. No. 8282 to examine available statistical and economic data to ensure that the benefits fall into the rightful beneficiaries. As held in Social Security Commission vs. Favila, 5, as the primary institution in charge of extending social security protection to workers and their beneficiaries is mandated by Section 4(5)(7) of RA 8282 to require reports, compilations and analyses of statistical and economic data and to make an investigation as tmay be needed for its proper administration and development. Precisely, the investigations conducted by $85 are appropriate in order tw ensure that the benefits provided under the SS Law are received by the rightful beneficiaries, [ts nat hhard to see that such measure is necessary for the system's proper administration, otherwise, it will be swamped with bogus claims that will pointlessly deplete its funds. Such scenario will certainly frustrate 15 | asncz016.1sagic Areas in Labor Laws (combined)/EVSA/ery:the purpose of the law which is to provide covered employeés and thelr families protection against the hazards of disability, sickness, old age and death, witha view to promoting thelr well-being in the spirit of social justice. Moreover and as correctly pointed out by SSC, such investigations are likewise necessary to carry out the mandate of Section 15 ofthe SS Law which provides in part, vi Sec. 18, Non-transferablity of Benefits. - The SSS shall pay the benefits Drovided for in this Act to such fxx xj persons as may be entitled thereto In accordance with the provisions of this Act. (Social Security Commission v, Edna Alzote, G.R. No. 209741, April 15,2015) DISABILITY Partial and total disability. ‘Total permanent disability means the disablement of an employee to earn wages in the same kind of work that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do, It does not mean absolute helplessness. n disability compensation, itis not the injury which is compensated, but rather it's the incapacity to work resulting in the impairment of one’s earning capacity. Partial dlsabiliy, on the one hand, is when the employee suffers a permanent partial loss ofthe use of-any part of his body as a result of the injury or sickness. a In Vicente v, Employees Compensation Commission, 271 Phil. 196 [1992], the Court laid down the litiis test and distinction between Permanent Total Disability and Permanent Partial Disability, to wit: & xxx while permanent total disability invariably results in an employce's loss of werk or , inability to perform his usual work, permanent partial disability, on the other hand, occurs when av employee loses the use of any particular anatomical part of his body which disables him to continue with his former work. Stated otherwise, the test of whether or not an employee suffers from’ permanenttotal Aisability is a showing of the capacity of the employee to continue performing his work hotwithstanding the disability he incurred. Thus, if by reason of the injury or sickness he sustalfed, the employee is ‘unable to perform his customary job for more than 120 or [240] days and he.does:not come within the coverage of Rule X of the Amended Rules on, Employees Compensability, (which, ina more detailed manner, describes what constitutes temporary total disability), then the said employee undoubtedly suffers from permanent total disability regardless of whether or not he loses the use of any part of his body, Be In Fil-Star Maritime Corporation v. Rosete, 677 Phil. 262 [2011], the-Court ermphasized that in determining whether a disability was total or partial, what was crucial was whether the employee who sulfered from disability could still perform his work notwithstanding the disability he met. (Belchem Phils. Inc; etal, v. ZafFa, Ir, G.R. No. 204485, june 15, 2015) In brief, permanent partial disability presupposes a seafarer’s fitness to resume sea duties before the end of the 120/240-day medical treatment period despite the injuries sustained. The premise is that such partial injuries did not disable a seafarer to earn wages in the same kind of-work or similar nature for which he was trained. As stated in Oriental Shipmanagement Co, Inc: v. Bastal, 636 Phil. 358 [2010], the company-designated doctor must declare the seaman fit to work or assess the degree ofthis-permayrent disability. Without which, the characterization of a ‘seafarer’s condition as permanent and total will ensue because the ability to return to one’s accustomed work before the applicable periods elapse cannot be shown: : vm _ WORK CONNECTED ILLNESS The Seaman's work as a’messman fsiot cohfined mainly to serving food and beverages to all officers and erew; he was likewise tasked to assist the.chief cook/chef steward, and thus performed most if not all the duties in the ship's steward department. In the performance of his-duties, he is bound to suffer chest and back pains, which could have caused or aggravated his illness. Hisistrenuotig duties caused him to suffer physical stress which exposed him to injuries. Iels therefore reasonable ticonclude that his.employment has contributed to some degree to the development af his disease. Even/assuming, that He had 4 pre-existing condition, as alleged by petitioners, this does not totally negate the probability ahd the possibility. that his aortic dissection was aggravated by his work conditions, The stress caused by his job ae tributed to theyirogression and aggravation of his illness. In compensation cases, “lt i sulficient that there Is a redgoriabledinkage between thesdisease suffered by the employee and his work to lead a rational mind to conclude that his work sgontribited to the establishment or, atthe very least, aggravation of any pre-existing condition he might have ahlé,Philman Manning Agency, Inc. v. Heirs of Gazzingan, june 17, 2015) Good Luck to All 2016 Bar Examinees We Are Praying for Your Success God Bless From: ABRC Family 16 | ABRcz016. Magic Areas n Labor Laws (combined/EVSA/erys