Security of Tenure -While the provision of Article 294 [279] makes reference only to regular employment as being Security

-While the provision of Article 294 [279] makes reference only to regular employment as being Security of tenure for teachers originate from two rules:
-Even before the security of tenure for the laborer was dignified into a constitutional right in 1973, it was already covered by Security of Tenure, it is also made to apply to other forms of employment, as seen in
recognized as one of the greatest guarantees of the worker against arbitrary dismissal by his employer. Pursuant to the Article 296 [281].
social justice policy, the government has consistently emphasized and strengthened this right, which is a less -Corporate officers are not covered by the security of tenure, as they are not employees, as they
enlightened age not far from our was scornfully dismissed as an unspeakable heresy (Baliwag Transit, Inc. vs Ople are given character by the Corporation Code or by the corporation’s by-laws (e.g. president,
Romeo Hughes G.R. 164532) secretary, treasurer)
-Labor is a paramount right of every employee that is held sacred by the Constitution. The reason for this is that labor is -Security of tenure for OFW’s
-OFW’s are2011
entitled to security
Manualofoftenure, at least
forfor
deemed to be “property” within the meaning of the constitutional guarantees. the period agreed upon in their contracts. This means that they
Under the Revised Regulations Private Schools in Basic Education:
cannot be dismissed before
75.the end of their contract termsor without due process.
of SchoolThis is so, even if the prevailing
Section Removal, Reduction In Salary Suspension Personnel.
doctrine is that an OFW can never acquire regular employment.
Removal, reduction in salary, or suspension without pay of school personnel under permanent status of private school
-However,
shall be for cause and after due process as provided for in this Manual, its implementingforrules,
they are not entitled to the reliefs under Article 294 [279]. The proper basis awards
andisthe
Section 10 and
of RA
policies
8042, as amended.
regulations of the school. Any removal, reduction in salary, or suspension without pay of school personnel under
permanent status in violation of the provisions of this Manual shall be null and void.
SEC. 10. MONEY CLAIMS. – Both
or notwithstanding anypay
provision of law to the contrary, the Laborstatus
Arbiters
shallofbe
the
Removal, reduction in salary, suspension without of school personnel under temporary subject to
National Labor Relations Commission (NLRC) shall have thetooriginal
preventand exclusive jurisdiction to of
hear and decide, within
such regulations as may be promulgated by the Secretary circumvention of the right such personnel to be
ninety (90) calendar days after filing of the complaint, the claims arising out of an employer-employee relationship or in
by
secured in their employment as defined in their agreement. Any temporary school personnel who has been removed
virtue of any lawregulations
or contractissued
involving Filipino workers forprovided
overseasfordeployment including claims forapplicable
actual, moral,
violation of the by the Secretary, or as in the school rules, or in any
exemplary and other forms of damages.
agreements, may be reinstated or paid his back salaries computed from the time it was withheld from him and for the
rest of the period for in his conduct, at the option of the school.
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section
shall be joint and several. This provisions shall be incorporated in the contract for overseas employment and shall be a
condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as
provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the
Under the 2008 Manual of Regulations for Private Higher Education, which applies to private higher education
recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be,
institution
shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and
Section 142. Due Process. In all matters that may result in the imposition of any sanction or penalty to
damages.
a higher education institution, or to any personnel or student, administrative due process shall in all instances be
observed.
Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected
by any substitution, amendment or modification made locally or in a foreign country of the said contract.
-Security of tenure for the Kasambahay: Under RA 10361 Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section
shall be paid within four (4) months from the approval of the settlement by the appropriate authority.
SEC. 32. Termination of Service. – Neither the domestic worker nor the employer may terminate the contract before
the expiration of the term except for grounds provided for in Sections 33 and 34 of this Act. In
If the
casedomestic workerofisoverseas employment without just, valid or authorized cause as defined by law or contract,
of termination
unjustly dismissed, the domestic worker shall be paid the compensation already earned plusthe theworkers
equivalent
shallofbe
fifteen
entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per
(15) days work by way of indemnity. If the domestic worker leaves without justifiable reason, any unpaid salary due for the unexpired portion of his employment contract or for three (3) months for every year of
annum, plus his salaries
not exceeding the equivalent fifteen (15) days work shall be forfeited. In addition, the employer may recover from the
the unexpired term, whichever is less.
domestic worker costs incurred related to the deployment expenses, if any: Provided, That the service has been
terminated within six (6) months from the domestic worker’s employment. Non-compliance with the mandatory periods for resolutions of cases provided under this section shall subject the
responsible officials to any or all of the following penalties:
If the duration of the domestic service is not determined either in stipulation or by the nature of the service, the
employer or the domestic worker may give notice to end the working relationship five (5) days before theofintended
(a) The salary any such official who fails to render his decision or resolutions within the prescribed period shall be, or
termination of the service. caused to be, withheld until the said official complies therewith;

(b) Suspension for not more than ninety (90) days; or

(c) Dismissal from the service with disqualifications to hold any appointive public office for five (5) years.

Provided, however, that the penalties herein provided shall be without prejudice to any liability which any such official
may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of this
paragraph.

DUE PROCESS IN LABOR CASES

DIFFERENCES COMPANY-LEVEL DUE PROCESS LABOR COURT DUE PROCESS

Definition Refers to the due process to be afforded by the employer to the employee Refers to the due process required to be afforded to the parties in termination cases filed with labor authorities such
as the Labor Arbiter and the NLRC
Kind of due process involved -Involves statutory and contractual due process Involves Constitutional due process.
Involvement of constitutional -Constitutional due process does not apply, as the relationship is between the employer and -Constitutional due process applies, as constitutional guarantees under the Bill of Rights may only be invoked against
due proces employee, which are both private parties to the case. the government, never against private party like the employer

DIFFERENCES STATUTORY DUE PROCESS CONTRACTUAL DUE PROCESS

Origin Refers to due process prescribed under the Labor Code Refers to company prescribed due process procedures
Origin Divided to substantive due process (legality of the act of dismissal), and procedural due process The company, therefore, has a contractual obligation to abide by its own procedure in evaluating the performance
JUST CAUSES UNDER ART. 297
(legality of the manner of dismissal) of a probationary employee
ART. 297 [282] Termination by employer. -
An employer may terminate an employment
for any of the following causes:

(a) Serious misconduct or willful

disobedience by the employee of the lawful
orders of his employer or representative in
connection with his work;

(b) Gross and habitual neglect by the

employee of his duties;

(c) Fraud or willful breach by the employee

of the trust reposed in him by his employer
or duly authorized representative;

COMPANY-LEVEL DUE PROCESS
DUE PROCESS IN TERMINATION CASES
LABOR-COURT DUE PROCESS
SERRANO VS NLRC
Jan 27, 2000
Mendoza, ponente
En Banc
Due process clause does not apply to exercise of private
power
The first is that the Due Process Clause of the Constitution is
a limitation on governmental powers. It does not apply to
the exercise of private power, such as the termination of
employment under the Labor Code. This is plain from the
text of Art. III, §1 of the Constitution, viz.: "No person shall
be deprived of life, liberty, or property without due process
of law. . . .” The reason is simple: Only the State has
authority to take the life, liberty, or property of the
individual. The purpose of the Due Process Clause is to
ensure that the exercise of this power is consistent with
what are considered civilized methods.
The second reason is that notice and hearing are required
under the Due Process Clause before the power of organized
society are brought to bear upon the individual. This is
obviously not the case of termination of employment under
Art. 283. Here the employee is not faced with an aspect of
the adversary system. The purpose for requiring a 30-day
written notice before an employee is laid off is not to afford
him an opportunity to be heard on any charge against him,
for there is none.The purpose rather is to give him time to
prepare for the eventual loss of his job and the DOLE an
opportunity to determine whether economic causes do exist
justifying the termination of his employment.
SUBSTANTIVE ASPECT JUST CAUSE
Article 294 [279]
Security of tenure. - In cases of regular employment,
the employer shall not terminate the services of an JUST CAUSES UNDER OTHER PROVISIONS OF
employee except for a just cause or when authorized THE LABOR CODE
by this Title. An employee who is unjustly dismissed 1)ART. 279(a) [264(a)] (Prohibited Activities) -
from work shall be entitled to reinstatement without Any worker whose employment has been
loss of seniority rights and other privileges and to his terminated as a consequence of any unlawful
lockout shall be entitled to reinstatement
full backwages, inclusive of allowances, and to his
with full backwages. Any union officer who
STATUTORY DUE PROCESS other benefits or their monetary equivalent computed
knowingly participates in an illegal strike and
from the time his compensation was withheld from
any worker or union officer who knowingly
him up to the time of his actual reinstatement. participates in the commission of illegal acts
during a strike may be declared to have lost
his employment status: Provided, That mere
participation of a worker in a lawful strike
shall not constitute sufficient ground for
PROCEDURAL ASPECT termination of his employment, even if a
Article 292 (b) [277(b)] replacement had been hired by the employer
(b) Subject to the constitutional right of workers to during such lawful strike.
security of tenure and their right to be protected
against dismissal except for a just and authorized 2)Strikers who violate the return to work
cause and without prejudice to the requirement of AUTHORIZED CAUSE
orders under ART. 278(g) [263(g)] When, in
notice under Article 298 [283] of this Code, the his opinion, there exists a labor dispute
employer shall furnish the worker whose causing or likely to cause a strike or lockout in
employment is sought to be terminated a written
CONTRACTUAL DUE PROCESS an industry indispensable to the national
notice containing a statement of the causes for interest, the Secretary of Labor and
termination and shall afford the latter ample Employment may assume jurisdiction over
opportunity to be heard and to defend himself with the dispute and decide it or certify the same
the assistance of his representative if he so desires to the Commission for compulsory
in accordance with company rules and regulations arbitration. Such assumption or certification
promulgated pursuant to guidelines set by the shall have the effect of automatically
Department of Labor and Employment. Any decision enjoining the intended or impending strike or
taken by the employer shall be without prejudice to lockout as specified in the assumption or
certification order. If one has already taken
place at the time of assumption or
certification, all striking or locked out
employees shall immediately return-to-work
and the employer shall immediately resume
operations and readmit all workers under the
same terms and conditions prevailing before
the strike or lockout. The Secretary of Labor
and Employment or the Commission may
seek the assistance of law enforcement
agencies to ensure compliance with this
provision as well as with such orders as he
may issue to enforce the same.
Business-related cases, referring to the grounds
specifically mentioned in Article 298 (283) Abbot Laboratories Philippines vs Alcaraz
1)Installation of labor-saving devices; July 23, 2013
2)Redundancy; Perlas-Bernabe, ponente 3)Violation of Union security agreement in
En Banc JUST CAUSES UNDER JURISPRUDENCE the CBA, under Art. 259(e) [248(e)] To
3)Retrenchment; and
4)Closure or cessation of business operations of Both statutory and contractual due process should be observed discriminate in regard to wages, hours of
1)Violation of company rules and regulations (Sampaguita work and other terms and conditions of
an establishment or an undertaking. in order to fully comply with procedural due process.
Veritably, a companyAuto Transport
policy partakesvsofNLRC G.R. 197384)
the nature of an implied employment in order to encourage or
2)Theft of property by the employee (Hancock Life discourage membership in any labor
contract between the employer and employee. In Parts Depot,
AGABON VS NLRC Insurance vs. Davis, G.R. 169549) When does the right to counselorganization. Nothing in this Code or in any
become mandatory?
Inc. v. Beiswenger, it has been held that:
(Nov 17, 2004) 3)Incompetence, inefficiency, or ineptitude (Reyes-Rayel vs other law shall stop the parties from requiring
Ynares-Santiago, ponente Philippine Luen Thai G.R. 174893) membership in a recognized collective
Employer statements4)Failure
of policyto. .attain
. can give
workrise to contractual
quota (Aliling vs Feliciano G.R.
En Banc -When the employee himselfbargaining agent
requests for as a condition
counsel; or for
rights in employees without
185829)evidence that the parties mutually employment,
To be sure, the Due Process Clause in Article III, Section 1 of the -When he manifests that he wants a formalexcept
hearingthose employees who
on the
Constitution embodies a system of rights based on moral agreed that the 5)Failure
policy to
statements comply
would with weight
create standards
contractual (Yrasegui vs PAL are already members of another union at the
charges against him;
rights in the employee, G.R.and,
168081)
hence, although the statement of time of the signing of the collective
principles so deeply imbedded in the traditions and feelings of
policy is signed by 6) Attitude
neither party,problem
can be (Reyes-Rayel
unilaterally vs Philippine
amended by Luen Thai bargaining agreement. Employees of an
our people as to be deemed fundamental to a civilized society as Consequently, if there is no showing that an employee has
G.R. 174893) appropriate bargaining unithe
who
conceived by our entire history. Due process is that which the employer without notice to the employee, and contains no requested for a formal hearing to be conducted, or that beare not
reference to a specific employee, his job description or members of the recognized collective
assisted by counsel, there can be no deprivation of due process
comports with the deepest notions of cause,
Health-related what isreferring
fair and to
right and under Art. 299
disease (284).
just.26 It is a constitutional restraint on the legislative as well as compensation, and although no reference was made to the to speak of. (Lopez vs Alturasbargaining agent may G.R.
Group of Companies be assessed
191008)a
policy statement in pre-employment interviews and the reasonable fee equivalent to the dues and
on the executive and judicial powers of the government provided
employee does not learn of its existence until after his hiring. Right against unreasonable other fees
unsearches paid
and by members
seizures and of theto
right
by the Bill of Rights.
Toussaint, 292 N.W .2d at 892. The principle is akin to estoppel. privacy, of communication – recognized collective
not applicable bargaining
to company level agent, if such
non-union
termination, as these are private parties.members accept the benefits
Once an employer establishes an express personnel policy and
Due process under the Labor Code, like Constitutional due under the collective bargaining agreement:
the employee continues to work while the policy remains in
process, has two aspects: substantive, i.e., the valid and Provided, that the individual authorization
effect, the policy is deemed an implied contract for so long as it required under Article 242, paragraph (o) of
authorized causes of employment termination under the Labor
remains in effect. If the employer unilaterally changes the policy, this Code shall not apply to the non-members
Code; and procedural, i.e., the manner of dismissal. Procedural
the terms of the implied contract are also thereby changed. of the recognized collective bargaining agent;
due process requirements for dismissal are found in the
(Emphasis and underscoring supplied.)
Implementing Rules of P.D. 442, as amended, otherwise known as
the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as
amended by Department Order Nos. 9 and 10.27 Breaches of Hence, given such nature, company personnel policies create an
these due process requirements violate the Labor Code. obligation on the part of both the employee and the employer
Therefore statutory due process should be differentiated from to abide by the same.
 PRINCIPLES GOVERNING HEARING
-Grievance proceedings conducted after termination not
APPLICABILITY OF OTHER CONSTITUTIONAL RIGHTS TO COMPANY-LEVEL TERMINATION CASES Right of Employers to Due Process compliant with due process requirement
1) Equal protection clause- -Suspicion cannot take the place of proof
General rule: not applicable to company level termination (Yrasegui vs PAL, G.R. 168081) -Unsubstantiated accusations or baseless conclusions not
Do employers have the right to due process? YES, employer sufficient legal justification to dismiss an employee
Exception: When the state, in any of its manifestations or actions, has been found to have become must also be given the right to be heard before Labor
entwined or involved in a wrongful private conduct (Duncan Association of Detailman vs Glaxo -Fault of the husband is not the fault of the wife
Tribunals (Habana vs NLRC G.R. 129418) -Co-conspirators confession, not sufficient to merit
Welcome Philippines, G.R. 162994)
dismissal
While true that the law favors the employee, this does not -Inculpatory statement made by a co-employee may be
2) Right against self-incrimination- applicable to labor proceedings mean that every case would be decided in favor of the working used as basis to terminate employment of another.
-gives the option of refusal to answer questions but not a prohibition of inquiry class.
-only accused in a criminal case and by way of exception, a respondent in an administrative case that
partakes of the nature of a criminal proceeding, or analogous to, a criminal proceeding, can refuse to
testify. HOW WRITTEN NOTICES ARE SERVED
-no obligation exists on the part of the employer to advise respondent employee or a witness of his 1) Mail
right to self-incrimination 2) Private courier
-such right should be claimed, otherwise it is waived. 3) Last known address per Personal Data
Sheet or any personal file maintained
3) Right to counsel and right to remain silent by the employer
-inapplicable to labor proceedings, as it can only be asserted in custodial interrogation, Insufficient forms of service
-the right to counsel cannot be invoked in an administrative proceeding (Manuel vs N.C. Construction 1) Notice posted in the bulletin board or
Supply, G.R. 127553) in work premises
-Would the failure of the employer to inform employee of his right to counsel be a violation of due 2) Notice in a newspaper
process? YES. In Punzal vs ETSI Technologies (G.R. 170384-85), the court ruled that the failure of the
HEARING REQUIRED IN TERMINATION FOR JUST CAUSES
employer to inform the respondent of her right to counsel fall under Article 292 (b) [277 (b)] of the
Labor Code, wherein provided: -the twin notice and hearing requirements constitute the essence of procedural due process
-Outright termination violates due process
“the employer shall furnish the worker whose employment is sought to be terminated xxx latter ample -Investigation still required even if incident was witnessed by many
opportunity to be heard and to defend himself with the assistance of his representative if he so desires -Notice and hearing before the commission of offense is not valid
in accordance with company rules and regulations promulgated pursuant to guidelines set by the -Dismissal deemed valid if the due process procedure is conducted after the filing by the employee
TWIN NOTICE OF NOTICE AND HEARING APPLY ONLY TO TERMINATION FOR JUST CAUSES Department of Labor and Employment.” with the Labor Arbiter of the complaint for illegal dismissal.
“ample opportunity connotes
ANSWER TOevery
THEkind of assistance
FIRST that management must accord the employee to
WRITTEN NOTICE -Written notice is still required even if summary dismissal is agreed upon in the employment
enable him to prepare adequately for his defense including legal representation”. contract
-If termination be due to the complaints of co-workers or parents, there is no need to furnish
1) The respondent employee should
respondent employee with copies of the complaint, or to have the complaints reduced to writing.
submit is written answer to the charges
mentioned in the first written notice. DOES LABOR-COURT DUE(Leilani
PROCES Mendoza vs NLRC,
CURE DEFECT IN G.R. 131405, and Colegio
COMPANY-LEVEL de San Suan de Letran vs Dela Rosa-Meris,
DUE PROCESS
G.R. 178837)
2) WHO SHOULD SIGN THE ANSWER?
a) Signed by him personally
b) Or by his lawyer TERMINATION FOR JUST OR AUTHORIZED CAUSE WITHOUT PROCEDURAL DUE PROCESS
c) Or authorized representative
on his behalf, or by him
together with that of the latter.
 Kings of Kings Transport vs Mamac THE SECOND WRITTEN NOTICE TWO WRITTEN NOTICES REQUIRED IN TERMINATION FOR JUST CAUSES WHEN THERE ARE NO VALID GROUNDS FOR DISMISSAL
June 29, 2007 Under the King of Kings Transport, second written -Verbal notice is not valid, as it must be reduced to writing
Velasco, ponente notice should be served on the employee stating the -Notice of prevention suspension is not a valid notice for dismissal NO. The failure of the employer to afford procedural due
2nd Division following: -A demand letter is not equivalent to the required twin notice. process in the termination of an employee at the company
1) That all the facts and circumstances CONTENTS OF THE FIRST WRITTEN NOTICE level is not cured nor supplanted by the subsequent due
(1) The first written notice to be served on the employees should contain involving the charges against the 1) The specific causes or grounds for termination being invoked against the process in the labor proceeding in an illegal proceeding
employee have been considered; employee must be clearly stated therein; case.
the specific causes or grounds for termination against them, and a directive
2) That grounds have been established The lack of due process before the dismissal was deemed
that the employees are given the opportunity to submit their written
to justify the severance of this 2) The intention that the employee’s termination is being sought should be corrected by the subsequent administrative proceedings
explanation within a reasonable period. "Reasonable opportunity" under employment. were the dismissed employee was given a chance to be
unmistakably stated therein;
the Omnibus Rules means every kind of assistance that management must -Any deviation from the foregoing dictated contents of heard, those cases involved dismissals that were later
REFUSAL
accord toOR FAILURE
the TO SUBMIT
employees to enableANSWER
them to ORprepare
EXPLANATION
adequately for their a written notice of termination would constitute a proved to be for a valid cause. The doctrine in those cases
defense.151) This should
It may bebe construed
construed as as aa waiver
period of of at
hisleast
rightfive
to contest the
(5) calendar violation of the procedural due process. 3) A directive that he is given the opportunity to submit his written explanation is not applicable to the case at bar because the dismissal is
days from receiptcontents of thetoletter,
of the notice thereby
give the forfeiting
employees his right to to
an opportunity within the reasonable period of five (5) calendar days from receipt thereof, not justified (Hellenic Philippines vs Siete, G.R. 84082).
respond to the charges against him and to rebut the
study the accusation against them, consult a union official or lawyer, gather which period will sufficiently give him an opportunity to study the accusation
evidence thereon; WHO IS THE “APPROPRIATE OFFICIAL”?
data and evidence, and decide on the defenses they will raise against the against him, consult a union official or lawyer, gather data and evidence, and 1) Labor Arbiters, under paragraph [a] (2) of Art. 224
complaint. Moreover, in order to enable the employees to intelligently decide on the defenses he will raise against the employer. Wenphil
-employer may then proceed to conduct the hearing, in [217] Corp. vs NLRC
prepare their explanation andwith
defenses, the notice should contain a -the Labor Code does not provide for what reasonable period is. Under the King and Kings February 8, 1989 or Panel of Voluntary
accordance the requirements of the prevailing 2) Voluntary Arbitrators,
detailed narration of the facts and or circumstances thatbased
will serve as basis for Transport case, should be 5 days. En Banc
doctrine in Perez, decide the case on the evidence Arbitrators under Art. 274 [261] and 275 [262]
the charge against -Non-compliance with the 5-day period may be considered as indication of constructive dismissal Gancayco
sothe employees.
far gathered forAthegeneral description of the charge will
employer. 3) The DOLE Secretary, in the exercise of his assumption
not suffice. Lastly, the notice should specifically mention which company (Cosare vs Broadcom Asia, G.R. 201298) -With just cause, but in notnational
procedural duecases
process
powers interest under par. [g] of Art.
-Employee may request extension of time to submit his explanation. (SDCWA-UWP, G.R. 165995) Termination is278 considered
rules, if 2)
any, are violated and/or which
It may constitute willfulamong the grounds
disobedience under Art. 282 for
or insubordination [263] valid, but the employer
April 7, 2009 should be
4) sanctioned with the payment
The NLRC, in NationalSerrano of indemnity
InterestvsCasesNLRCcertified to it for
is being charged which
againstreason he may be dismissed.
the employees.
TERMINATION WITHOUT Intention 4) A detailed narration of the facts and circumstances that will serve as basisponente
Corona, for ranging from P 1,000 to P 10,000.
Jan 27, 2000
-employee will be administratively chargedfor
of the employer to dismiss his employee forno
thecause whatsoever, in
new and compulsory arbitration.
CAUSE which case, the dismissal is considered illegal or insubordination the charge against him in order to enable him to intelligently prepareEn hisBanc -This is known as the “Belated Due Process En Banc Rule”.
separate offense of willful disobedience
explanation and defenses; PEREZ DOCTRINE Mendoza
TERMINATION FOR NON- The employer doesofnot
by reason intend
is act to dismiss
of refusing the employee
to submit but the dismissal was
his answer-
-merely alleging that respondents committedPerez illegalvs
strike without specifying Modified
EXISTENT CAUSE effectedexplanation
nonethelesstofor thea specific cause which
first show-cause turned
notice. out tobe
He could be non-existent Philippine Telegraph and Telephone Under Company nos. 3 and 4, thethe DOLE Wenphil
Secretary doctrine,
or theand declared
NLRC, as the that case such
may
the particular acts which constitute an illegal strike fallsThe
short of “ample
this opportunity to bebe, termination
be to issueisreturn-to-work
neither illegal order nor void but hassimply
dismissed on this ground separately and distinctly from the a) term heard”
has theshould
power which theineffectual,
same
requirement. descriptionofneither foundofintermination,
the Labor Code
original ground/s citied in the first show-cause notice. interpreted to mean any meaningfuleffect opportunity
as the suspension the effects thator is,any
the other law
(verbal or written) given to the employee immediate to answer -Instead of relief
reinstatement o theofemployees,
reinstatement, Hence, or no
separation
separatepay, order“ineffectual
5) The specific company rule or policy or ground under Article 297 violated
againstfor dismissal”
the charges him and submit suspendingevidence in the effects ofistermination
sanctioned by ordering the
is necessary in the employer to pay full
cases falling
which he is being charged should be accurately quotedsupport therein of his defense,
PURPOSE whetherOF THE SECOND
in aunder
hearing, WRITTENbackwagesNOTICE: reckoned and computed from the time of the
Art. 278 (g) [263 (g)].
-first notice should not only specify the section of the company rule violated but alsoorthe
conference somepenalty
-isother
actuallyfair,the notice
just, EFFECT
and of OF FILING
termination
reasonable CRIMINAL
that
“ineffectual must CASE
be
dismissal” ON
servedwhen THE
on theLABOR
the CASE ARISING
employee
employees upon theFROM
compensation findingANDof
was
Agabon vs NLRC WHEN THERE ARE VALID GROUNDS FOR DISMISSAL
of dismissal imposable thereon. the employer thatUnder BASED
he ON1THE
is guilty ofand
theSAME INCIDENT
Nov. 17, 2004 OTHER INSTANCES WHERE HEARING IS NOT REQUIRED way; nos. 2,charges
withheld from
in cases leveled
him
of upagainst
termination him
to the finality as specified
disputes of falling in the the
the decision.
under first written
-pertinent ground in Article 297 (282) must be cited as additional basis A formal hearing ornotice which earlier -FILING
required OFof AIn
him CRIMINAL
toLabor
case explain CASE NOT
his side
theArbiters
dismissal AVoluntary
PRE-REQUISITE
thereof.
was for authorized TO A VALID
cause, DISMISSAL
Ynares-Santiago YES. This is so because what the due process clause in the 1) Termination of certain b) kinds of employment conference
under Article becomes
295 [280] such mandatory
jurisdiction the and Arbitrators inseparation
cases of pay
Constitution proscribes is the total absence of the chance to be as casual, project, and seasonalonly under anyupon
employment, -the
of the the first notice
following
expiration -Finding
isoftermination
not
theintended
4 circumstances: of disputes
probable
to inform
should be cause
the may
employee
paidunder
falling bethe
in addition used
ofto tofull
his bolster
actual
jurisdiction athe
case
ofdismissal.
backwages. forThat
Labor termination
is the subject
Arbiters,
En Banc
heard.toIfWenphil.
a party was not initially given a chance to be heard at the period agreed upon of the 2ndWhen
1) notice. (Batangas
requested
and by theLagunaArbitrators
the Voluntary Tayabas Bus or Co.
panelvs NLRC L-69875),
of Voluntary or it may as
Arbitrators, notthebe
-Abandoned Serrano and reverted
company level, but -Likewise, there
employeecaseis considered
no compliance
in writing; (Lynvil
with Fishing
the due Enterprises
process vs Ariola,
requirement
may be, they are the appropriate officials referred to in Article 292 G.R.
if 181974)
only the second notice is
-If dismissal was for a cause, lack of statutory duewas later given full opportunity to submit 2) Termination of fixed-term employment
position papers or present his case and arguments before the 3) Termination of IN
probationary employment served
2) on the
When employee-Resolution
substantial
9b) [277 informing
(b)] of
who the
him
maypublic
that
make prosecutor
he was
the does
thereby
preliminary not affect
terminated
determination labor
from case
work,
of thebefore
but the was
there
process should not nullify the dismissal, or render it STANDARD SITUATIONS TERMINATION DISPUTES
Labor Arbiter, this defect no earlier first notice
evidentiary NLRC (JRS
apprising Business
disputesofexist;
existence him of Corporation
the particular vs NLRC
acts or G.R. 108891)
omissions
a prima facie evidence that the termination will cause a for which his dismissal was
illegal or ineffectual, but the employer’s violation of is cured. (Pepsi-Cola Distributors of the 4) Termination
1) due to abandonment
Termination of work causes and
for just or authorized
Philippines vs NLRC G.R. 100686) 5) Termination sought.
3) When a company
serious rule
labor or
dispute or is being made in the implementation of a mass
the employee’s right to statutory due process would withdue to any of
procedural theprocess
due authorized causes
– Legal under Art. 298 [283]
Dismissal
In cases where -For the practice
same reason, EFFECT
requires
lay-off.theTo OF
due
it; TERMINATION
processsuch
reiterate, requirementOF EMPLOYMENT
prima is not
facie complied
finding OF then
will COURT if ACQUITTAL
withbecome no second OR
notice
the basis
warrant the payment of indemnity in form ofthe employee was not given due process by the
nominal 6) Termination
2) due to disease
Termination withoutunder Art.
just or 299 [284]cause
authorized
employer priortotothe
his dismissal but in the course of the 7) Termination by the employeedue (resignation) under4) embodying
Art. 300 When
[285]thesimilar
forCONVICTION
decision the
circumstance
the issuance IIN
decision byAtheCRIMINAL
to dismiss isCASE
DOLE Secretarygiven toofthe his employee.
order suspending the
damages, the amount of which is addressed but with procedural process – Illegal
-employer mustit.ingive
justify -Employee’s
second
effects guilttoorthe
notice
of termination innocence
employee
which, in aincriminal
as earlier case thecase
emphasized, , not
latter material
meaninthe
is exculpated
would determining
from the
sound discretion of the Court,proceedings before the
taking into account theLabor Arbiter, it was established by 8) Termination after 6 months of bona fide suspension
Dismissal of operation Art.
substantial evidence that indeed just cause exists to support the 301 [286]Termination for c) just or The “amplecause chargesto be heard”
opportunity existence ofinjust
the or authorized
standardreinstatement
immediate of the cause.
terminated employees pending the
relevant circumstances. 3) authorized but
termination of the employee, the dismissal is considered valid but 9) Termination due procedural
to retirement Labor Code prevails -employee must be
over the “hearing -Thus,
final an acquittal
dismissed
orresolution
conference” based on
of theirin the
atermination
criminal
same groundcase does
case. not affect
mentioned in the
the finding of guilt
first notice in
(Artemio
-In other words, under Agabon, the employee remains without dueunder Art.Legal
process- 302 [287]
the employer is sanctioned by imposing a penalty to indemnify the 10) Termination due to expiration ofrequirement
tenure made its Labor
in coterminous vs NLRC,
Implementing 110388)
with Rules
lease labor
and case. Nor does it mean that acquittal of criminal charge does not ipso
dismissed but the employer must pay an indemnity Dismissal
employeebut forlighter
lack ofthan
due process (Wenphil Corp. vs NLRC, G.R. 11) Termination due to work stoppageRegulations”. -But labor tribunals facto
can gomeanbeyondreinstatement
the grounds (Ladislao
stated in Vergara
the noticevs NLRC, G.R. 117196)
of dismissal. Therefore, an
heavier than that imposed in Wenphil 4) Termination without just orofauthorized
work by governmental
cause authorities
80587). 12) Termination due to expiration ofdue
contractual employeeinmay still be removed from employment if another ground for dismissal is proved with
Serrano’s full backwages. and without procedural process –employment
Illegal a legitimate
contracting or subcontracting arrangement substantial before the Labor Arbiter. (Formantes vs Duncan Pharmaceuticals (G.R. 170661)
-Not anymore backwages, but nominal damages, at P Dismissal
13) Termination of an employee who has cause
admitted -In case involving
his guilt for the offense several grounds, the existence of a single cause is enough to justify the
30,000. 5) Termination for non-existent – Illegal
charged Dismissal dismissal of the employee. It is inconsequential if the other charges against him did not merit his
dismissal from service. TERMINATION FOR NON-EXISTENT CAUSE-Remedy is to reinstate the
6) Termination not supported by any evidence of
dismissal – Neither Legal Nor Illegal Dismissal employee
RULE IN CASE OF SUCCESSIVE OFFENSES
7) Termination brought about by the
-Twin notice requirement should be separately complied with for the successive offenses
implementation of a law- Legal dismissal
 BURDEN OF PROOF IN ILLEGAL DISMISSAL CASES
-Generally, the burden of proof rests on the employer
-Exception: when the facts and the evidence do not establish a prima facie Jaka Food Processing vs Pacot TERMINATION BY IMPLEMENTATION
SUSPENSION OF EFFECTS OF A LAW OF TERMINATION
case that the employee was dismissed from employment. Before the G.R. 151378 -In cases where termination of employment is occasioned by the
employer must bear the burden of proving that the dismissal was legal, the March 28, 2005 employer’s compliance with the requirements
POWER TO SUSPEND IS WITH imposed
THE DOLE by the law,
SECRETARY, UNDER Art. 292 (b) [277(b)] of the
employee must first establish by substantial evidence the fact of his Garcia employer is completelyLaborfaultless
Code. hence termination should be
-For private schools, preventive suspension is provided for in the applicable manuals En Banc
dismissal from service. considered valid and legal.
-Filing of complaint for illegal dismissal does not remove the burden on the -With authorized cause, but without procedural due process, stiffer -St. Luke’s Medical Center
“xxx The vsSecretary
NLRC (G.R. of162053)- the enactment
the Department of Laborofand RA Employment may suspend the effects of
employee. sanction of P 50,000 as nominal damages, compared to Agabon. 7431, which required theradiologists
terminationtopending
secure certificate
resolutionof ofregistration
the dispute in the event of a prima facie finding by
BURDEN OF PRORF IN MONETARY CLAIMS CASES -Why the stiffer penalty? The Court elaborated: from the Board of Radiologic Technology,
the appropriate officialled to the
of the dismissal of
Department of the
Labor and Employment before whom such
-Generally, the employer who alleges payment has the burden of proof in “At this point, we note that there are divergent implications of a employee, as he was unableisto
dispute secure that
pending one.theEmployer was not
termination mayliable
causefora serious labor dispute or is in
monetary claims cases. dismissal for just cause under Article 282, on one hand, and a dismissal dismissal. implementation of a mass lay-off. xxx”
-Exception: when the employee has not proved that he is entitled to the for authorized cause under Article 283, on the other. -St. Mary’s Academy of Dipolog City vs Palacio (G.R. 164913)- the
money claims. A dismissal for just cause under Article 282 implies that the employee enactment of RA 7836 which required
GROUNDS TO SUSPEND the teachers to pass the Licensure
TERMINATION:
concerned has committed, or is guilty of, some violation against the Examination for Teachers.
The DOLE As respondent
Secretary may wassuspend
disqualified from taking
the effects of termination pending resolution of the illegal
employer, i.e. the employee has committed some serious misconduct, is the exam, she did not complycase
dismissal withinthe
therequirements
event of a prima of the law.finding by the appropriate official of the DOLE
facie
2008 Manual of Regulations for Private Higher Education, which applies to private higher guilty of some fraud against the employer, or, as in Agabon, he has PUNITIVE SUSPENSION -Ang vs PNB (G.R. 178762)- termination
before whom the case byisoperation
pending thatof lawthedue to
termination may either:
-If preventive suspension is extended beyond 30 days, the employer
neglected his duties. Thus, it can be said that the employee himself
education institutions
TERMINATION NOT SUPPORTED BY ANY EVIDENCE OF DISMISSAL -Not provided for under privatization
the LaborofCode
a government-owned
1)
or Implementing or controlled
Cause
Rules, a serious
but corporation.
imposedlabor
as dispute; or
a lesser penalty compared to
must pay salary during the period initiated ofthe
extension (Perez vs Philippine
dismissal process. Transformation of PNB from2) GOCC toIsprivate corporation resulted
in implementation or a masstolay-off.
the
-Before the employer must bear the burden Sectionof122. Suspension
proving that the. dismissal
Suspension of any personnel of a higher dismissal.
was legal, the employeeeducation institution
must first may
establish bybe preventive
substantial or punitive.
evidence the Telegraph and Telephone Company,
On another G.R. 152048)
breath, a dismissal for an authorized cause under Article 283 automatic termination of the3)employees.
-Must still follow the substantive and procedural due process requirements for termination.
A personnel
fact of his dismissal from service. Logically, if there charged for an to
is no dismissal offense
speakmay be placed under preventive -In case the original period ofdoes not necessarily
suspension is lessimply
thandelinquency
30 days but or culpability on the part-Illegally
of the suspended employees may entitled RATIONALE
to moral FOR
andTHE RULE- todamages.
exemplary bring the parties back to the status quo ante litem, that is, to
employee. Instead, the dismissal process is initiated by the employer's their state prior to the termination. In this fashion, the workers will be litigating the issue of
of, then there can besuspension
no questionpending
as to theinvestigation, when his/her
legality or illegality of it. continued presence poses a serious and extended to 30 days, the employer is not required to give
eminent threat exercise of his management prerogative, i.e. when the employer opts to validity or legality of their termination on more or less equal footing with the employer since
-Proper term is “return to work” andtonotother persons, the
reinstatement students
(Jordan vs or personnel and to the institution and its compensation for the periodinstall of extension. PUNITIVE SUSPENSION PREVENTIVE SUSPENSION
labor saving devices,
IS THE when heREQUIREMENT
DUE PROCESS decides to cease business
STILL NEEDED IN THE in itself they will not be deprived of their
Grandeur Security and property.
ServicesInG.R.
no case shall preventive suspension exceed a period of 30 days.
206716) -For violating the 30-day preventive suspension A penalty Not a penalty butwages whilemeasure
a punitive the litigation is ongoing.
A penalty of the institution found guilty of the commission of an offense operations or when, as period,
IMPOSITION in this employer
OFcase, he undertakes
PREVENTIVE to implement
SUSPENSION? a
YES, employers are still
Imposed as a penalty after the conduct of such Proper at the inception of administrative
-Remedy is to reinstatemayemployee,
be imposed butthe
withpenalty of suspension for a period the attending circumstances may
no backwages may be asked to pay indemnity retrenchment program.
required to comply with the twin requirements of notice and if the evidence gathered in the
proceeding, proceedings to be conducted by the employer
warrant. -If the preventive suspensionThe was clear-cut
wrongly distinction
imposed
hearing tobetween
ensure a dismissal
as itthat
was not
the for just are
employees cause under Article
afforded due process,
course thereof warrants its imposition and while the same is ongoing
282 and a dismissal
orfor authorized cause under
of Article
caught283
even though they may have been is further
in flagrante or the evidence
based on serious or imminent threat to life property, payment May only be imposed after compliance with May be imposed without need to observe both
reinforced by the fact that
of their in the first,
commission payment of separation pay, as a
is strong.
salary during the period of suspension and
rule, is not required, payment in of
thesalary is law requires paymentboth suspensive and procedural due process
2011 Revised Manualprocedural and substantive due process
-Errantwhile
employee second,
may onlythe
be preventively suspended offor a of Regulations for Private Schools in Basic Education,
DISMISSAL WITHOUT JUST OR AUTHORIZED CAUSE AND proper.
WITHOUT separation pay.” No similar limitation on the imposition of Limited to not more than 30 days
maximum of 30 days.
suspension as a penalty. Section 80. Preventive Suspension. The school head of a private
PROCEDURAL DUE PROCESS -Preventive suspension of more than 30 days, -Withinandthisindefinite
period, it is expected that the investigation would be
-An employee whose POWER
dismissalOFis THE
declared a schools may be preventively suspend a school personnel in basic education who is
DOLEillegal for lack
SECRETARY of bothARTICLE
preventive
UNDER suspension, amounts
292 (b) [277 (b)] ANDto constructive
POWER dismissal
OF ASSUMPTION
undertaken, OR CERTIFICATION
completed, and decided.IN NATIONAL INTEREST CASES ARTICLE 278 (g) [263 (g)]
substantive and procedural due process under investigation if the charge against him involves dishonesty, oppression,
Full-text of the provision ARTICLE 292 (b) is entitled,
[277 by waytoofthe
(b)] Subject
-Failure
additional
toconstitutional
state in theright of workers
notice -Forsuspension
to security
of preventive thetenure
of construction
anddoes industry,
their right tothe
not be suspension
ARTICLE may278only
(g)be for(g)] When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in
[263
relief , to such indemnityprotected
in the form of nominal
against damages
dismissal except (Naranjo vsand authorized cause and withoutmaximum prejudiceof to15
thedays (Dept. Orderof No. 19,anSeries of 1993) grave misconduct, neglect
of Laborinand theEmployment
performance may of duty,jurisdiction
or if there are strong
Biomedica Health Care G.R. 193789). meanforit aisjust
indefinite. requirement industry indispensable to the national interest,
reasons
the Secretary
toCommission
believe that
assume over
notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be the dispute and decide it or certify the same to the for he is guiltyarbitration.
compulsory of such charges which would
Such assumption or warrant his
-Preventive
terminated a written notice containing suspension
a statement of theiscauses
not considered
for terminationa penalty. However,
and shall afford when
the latter removal from
certification shall have the effect of automatically thethe
enjoining school. Preventive
intended suspension
or impending of school
strike or lockout personnel
as specified in shall be
ample opportunity to be heard theandemployee is laterwith
to defend himself dismissed, but the
the assistance termination
of his is iffound
representative to be in
he so desires the assumption or certification order. Ifexercised
one has already
on thetaken place atand
grounds the time of assumption
in the or certification,
manner provided all striking
therein.
accordance with company rules tooandharsh a penalty,
regulations the suspension
promulgated pursuant tomay be treated
guidelines as aDepartment
set by the penalty of or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and
A preventive suspension without pay, imposed upon any school
Labor and Employment. Any decision
(Sagalestaken by the employer
vs Rustan’s shall be without
Corporation, prejudice to the right of the worker
G.R. 166554) readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor
to contest the validity or legality of his dismissal by filing amay
complaint withvalid
the regional personnel shall notofbe lawmore than 60agencies
days. After the compliance
expirationwith of such period, he
-Preventive suspension be held even ifbranch of theisNational
dismissal and Employment or the Commission may seek the assistance
shall
enforcement to ensure
Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall this provision as well as with such orders as hebe reinstated,
may or histhe
issue to enforce suspension
same. shall continue with provisional pay,
declared
rest on the employer. The Secretary illegal,
of the and may
Department be conducted
of Labor evenmay
and Employment after a yearthe
suspend ofeffects
the of the provided, that when the delay in the disposition of the case is due to the fault, or
termination pending resolution commission
of the disputeofinthe
theoffense
event of a prima facie finding by the appropriate official of In line with the national concern for andpetition
the highest respect
of the accorded
school to the right
personnel of patients
himself, to life and
the period ofhealth,
delay strikes
shall not be counted
the Department of Labor and Employment before whom such dispute is pending that the termination may cause and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious
in computing the period of suspension herein allowed.
a serious labor dispute or is in implementation of a mass lay-off. efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not
prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to
strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals,
clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an
effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered
and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients,
most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor
and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a
strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose,
the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by
the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including
dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other
affirmative relief, even criminal prosecution against either or both of them.

AS TO ISSUES INVOLVED Involves only the issue of termination of employment which may cause a serous labor dispute or is in
implementation of a mass lay-off
AS TO THE NEED OF FINDING THAT A SERIOUS LABOR DISPUTE OR Requires the conduct of preliminary determination foe the existence of prima facie evidence that the
MASS LAY-OFF MAY RESULT termination may cause a serous labor dispute or is implementation of a mass lay-off to be conducted by the
appropriate official of the DOLE before who the termination dispute is pending
AS TO THE KIND OF LABOR DISPUTE INVOLVED “Serious labor dispute” contemplated under the former may or may not involve a strike or lockout
INDUSTRIES INVOLVED May be exercised in cases of termination of employment for as long as any of the two grounds mentioned in
Article 292 (b) [277 (b)] exists, irrespective of the nature of the business of the employer
REMEDIES Remedy is the immediate reinstatement pending resolution o the illegal dismissal case
The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries
that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction
over any such labor dispute in order to settle or terminate the same.
Applicable to all labor disputes, irrespective of the grounds therefore, provided such labor disputes will cause or likely to
cause a strike or lockout in industries indispensable to the national interest.
Does not require such preliminary prima facie determination. Prior notice and hearing are not required before the DOLE
Secretary may issue an assumption or certification order.
Labor dispute is likely to cause a strike or lockout
May only be exercised in industries indispensable to the national interest
Remedy is the automatic return to work of the strikers or locked-out employees, if the strike or lock-out is ongoing at the
time of the issuance of the assumption/certification order or the enjoining of the conduct of a strike or lockout if one has
 not taken place, pending the resolution of the issues raised in the notice of strike or lockout.

PREVENTIVE SUSPENSION
-Legal basis for preventive suspension is not found in the Labor Code, but in the Implementing Rules and Regulations

DIFFERENCE BETWEEN SUSPENSION, SUSPENSION OF OPERATIONS, AND FLOATING STATUS

PREVENTIVE SUSPENSION OF EMPLOYEE
Employee is out of work because he has committed a wrongful act and his continued employment or
presence in the company premises poses a serious or imminent threat to life or property of the
employer or of his co-workers
Without this kind of threat, preventive suspension is not proper.
SUSPENSION OF OPERATIONS
Art. 301 [286] bona-fide suspension of the operation of a business or undertaking for a period not
exceeding six (6) months shall not terminate the employment.
FLOATING STATUS
Employee is out of work because his employer has no available work or job to assign him to.
The worker is left with no choice but to wait for at least 6 months before he could claim
having been constructively dismissed, should the employer fail to assign him to any work or
job within said period.

SEPARATION PAY IN LIEU OF REINSTATEMENT AND BACKWAGES, DIFFERENCE

SEPARATION PAY BACKWAGES Payroll Reinstatement

Separation pay is paid when reinstatement is not possible Backwages are paid for the compensation which otherwise the employee should have earned had he not been illegally
dismissed UNDER ARTICLE 298
-entitled to a separation pay equivalent to at least his (1)
Computed on the basis of the employee’s length of service While the latter are based on the actual period when he was unlawfully prevented from working
DIFFERENT KINDS OF REINSTATEMENT month pay or to at least (1) month pay for every year of
Paid as a wherewithal during the period that an employee is looking for another employment Paid for the loss of earnings during the period between illegal dismissal and reinstatement
KINDS
Oriented towards theOFimmediate
REINSTATEMENT PROVISION
future, that is, the transitional period the dismissed employee must undergo Involved the restoration of the past income lost DOES IT REQUIRE WRIT OF EXECUTION REMEDIES service, whichever is higher. (Art. 298 [283])
Art. 229 [223],
before locating a replacement jobreinstatement of employee whose dismissal is declared xxx Self-executory, therefore does not need any writ of Employer is -However,
not grantedif the
the right
termination under
to forestall theArticle
or stay298
theisexecution
declared of the
illegal byofthe Labor Arbiter. This form of reinstatement is self- In any event, the decision of the Labor Arbiter reinstating a dismissed or separated execution reinstatementillegal,
orderthe reliefsbythat
issued theshould be awarded
labor arbiter. In noto thecan
way illegally
the employer stay
Cannot be paid in lieu backwages dismissed employees should be the onesthe
provided for two
under
executory and must be implemented even during the pendency of the employee, insofar as the reinstatement aspect is concerned, shall immediately be the execution by supersedeas bond. The law grants employer options,
Substitute only for reinstatement, but not an adequate substitute for both reinstatement and backwages Art.call
294for
[279]. This is because
appeal that may be instituted by the employer executory, even pending appeal. The employee shall either be admitted back to work both of which, reinstatement eitherthe issue is
actually tono
thelonger the former
employee’s
under the same terms and conditions prevailing prior to his dismissal or separation or, at amount
position or in of separation pay to which employees are entitled,
the payroll
the option of the employer, merely reinstated in the payroll. The posting of a bond by but the legality or validation of the termination based on any
the employer shall not stay the execution for reinstatement provided herein. of the grounds under Art. 298 [283].
xxx
Art. 278 [263 (g)], provides for automatic return to work of all striking Xxx Immediately executory upon the issuance of an The employer is under legal compulsion to immediately reinstate the striking or
or locked-out employees, if a strike or lockout has already taken place, When, in his opinion, there exists a labor dispute causing or likely to cause a strike or assumption or certification order by the DOLE locked-out employees upon the resumption of its operations, under the same
upon the issuance by the DOLE Secretary of an assumption or lockout in an industry indispensable to the national interest, the Secretary of Labor and Secretary, which, by law, automatically carries with it terms and conditions before the strike or lockout.
certification order. The employer is required to immediately resume Employment may assume jurisdiction over the dispute and decide it or certify the same a return-to-work order The return to work order may be implemented by reinstating the striking or
operations and readmit all workers under the same terms and to the Commission for compulsory arbitration. Such assumption or certification shall locked out employees to their former positions or in the payroll, where special
conditions before the strike or lockout. have the effect of automatically enjoining the intended or impending strike or lockout as circumstances exist that do not justify actual reinstatement.
specified in the assumption or certification order. If one has already taken place at the
time of assumption or certification, all striking or locked out employees shall
immediately return-to-work and the employer shall immediately resume operations and
readmit all workers under the same terms and conditions prevailing before the strike or
lockout. The Secretary of Labor and Employment or the Commission may seek the
assistance of law enforcement agencies to ensure compliance with this provision as well
as with such orders as he may issue to enforce the same.
xxx
Art. 292 (b) [277(b)], empowers the SOLE to suspend the effects of Xxx Immediately executory upon the issuance by the Employer does not have any contra-remedy against the immediate reinstatement
termination pending the resolution of the termination dispute in the The Secretary of the Department of Labor and Employment may suspend the effects of DOLE Secretary of an order suspending the effects of which automatically results upon the issuance of the order by the DOLE Secretary
event of a prima facie finding by the appropriate official of the DOLE the termination pending resolution of the dispute in the event of a prima facie finding by termination suspending the effects of termination.
before whom such dispute is pending that the termination may cause a the appropriate official of the Department of Labor and Employment before whom such
serious labor dispute or is in implementation of a mass lay-off dispute is pending that the termination may cause a serious labor dispute or is in
implementation of a mass lay-off.
Xxx
Art. 294 [279], which grants reinstatement as a relief to an employee Xxx May only be executed and enforced through the No remedies available to the employer, as the order has already become final
whose dismissal is declared illegal in a final or executory order An employee who is unjustly dismissed from work shall be entitled to reinstatement issuance of the writ of execution under Art. 230 (224) and executory
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 from him up to the time of his actual
reinstatement.
xxx
Art. 299 (284) requires the reinstatement of the ailing employee who
has taken a leave of absence for a period not exceeding 6 months due
to his disease or ailment which can be cured within the said period
with proper medical treatment.
-Not provided expressly under the Labor Code, but under the
Implementing Rules, the employer should not terminate the employee
but merely ask them to take a leave of absence and should
immediately reinstate them upon the restoration of his normal health.
Art. 301 [286], involves the bona fide suspension of operation for a When employment not deemed terminated. - The bona-fide suspension of the operation
period not exceeding 6 months or the rendition by an employee of of a business or undertaking for a period not exceeding six (6) months, or
military or civic duty. It is required under this provision that the the fulfillment by the employee of a military or civic duty shall not terminate
employer should reinstate his employee upon resumption of operation employment. In all such cases, the employer shall reinstate the employee to his former
which should be done before the lapse of said six-month period of position without loss of seniority rights if he indicates his desire to resume his work not
bona-fide suspension of operation or after the rendition by the later than one (1) month from the resumption of operations of his employer or from his
employee of military or civic duty. relief from the military or civic duty.
REINSTATEMENT UNDER ART. 294 [279]
-Reinstatement may be awarded even if not prayed for.
-Status of employment is immaterial to the reinstatement. Thus, even if the employee was
not a regular one, he may be reinstated
-Applicable rate of salary upon reinstatement is the last salary in that position
-“without loss of seniority rights” means “the creditable years in the employment record of
the illegally dismissed employee as if he or she has never ceased working for the employer.
-Award of separation pay is not proper when the dismissal of the employee
is held valid.
-Separation pay is only proper as substitute for reinstatement but not for
backwages
-Separation pay and backwages are not inconsistent with each other.
-Death of employee during pendency of the case forestalls award of
separation pay in lieu of reinstatement.
-Separation pay in lieu of reinstatement may be claimed against the estate.

In case of retrenchment, reinstatement is impossible. (Mitsubishi vs Chrysler Philippines

Labor Union, G.R. 148738)
Change in the financial circumstances of the employer’s business may bar reinstatement
(Talisay Employees and Laborer’s Association vs CIR, L-39844).
Reinstatement is enforceable against new owner, as the obligation to reinstate an
employee who was illegally dismissed by the previous owner of the establishment
devolves upon the new owner thereof (Pepsi-Cola Bottling vs NLRC, G.R. 101900)
Reinstatement to a sister company may be considered compliance with the
reinstatement order, since the Board of Directors and officers of both corporations are
the same. (Emeritus Security and Maintenance Systems vs Dailig, G.R. 204761)
-Separation pay may be offset by the loans made by the employee against the employer, under the principle
of legal compensation under the Civil Code.
-However, employer cannot choose separation pay in lieu of reinstatement instead of actual reinstatement.
Reinstatement remains the superior option.
-Reinstatement cannot be granted when what is prayed for is separation pay in lieu thereof (SME Bank vs De
Guzman, G.R. 184517)
-GENERAL RULE: Employee is bound to his prayer for reinstatement and cannot subsequently request for
separation pay in lieu of reinstatement instead
EXCEPTION: When the company closes down, and reinstatement is impossible, the employee may pray for
separation pay instead (Procter and Gamble vs Bondesto, G.R. 139847)
-Grant of separation pay in lieu of reinstatement converts the award of reinstatement into a monetary
award, therefore legal interest may be imposed (Session Delights Ice Cream vs CA, G.R. 172149).

WHAT COMPRISES SEPARATION PAY IN LIEU OF REINSTATEMENT

1) Amount equivalent to at least one month salary or to one moth salary for every
year of service, whichever is higher, a fraction of at least six months being
considered as one long year
2) Allowances that the employees have been receiving on a regular basis.
3) Commissions may or may not be included.

WHAT SALARY RATE IS TO BE USED The salary rate to be used at the end of the period of putative service
should be the basis for computation which refers to the period of imputed service for which the employee is
entitled to backwages.
 BACKWAGES
Adverse effects of terminating permanent replacement to accommodate reinstatement of former holder of Article 294 [279], an employee who is unjustly dismissed is entitled not only to
position reinstatement, without loss of seniority rights and other privileges, but also to
1) It would deprive the permanent replacement of his security of tenure as permanent and -Reinstatement must be to the former position, or when former position no longer OTHER FORMS OF SEPARATION PAY
the payment of his full backwages, inclusive of allowances and other benefits or
regular employee; exists, to a substantially equivalent position: 1) When termination is due to: a) installation of labor-saving devices; b) redundancy; c)
in their monetary equivalent, computed from the time compensation was
2) The termination is not justified since the fact of reinstatement of the former holder of the In case former position has already been filled up by permanent replacement: retrenchment; d) closure or cessation of business operations under Article 298 [283]
withheld from him (which, as a rule, is from the time of his illegal dismissal) up
same position is neither just or authorized cause; 1) Reinstatement should be made to a substantially equivalent vacant 2) When termination is due to disease of an employee and his continued employment is
to the time of his actual reinstatement, or up to the finality of the decision.
3) It was not put forwards as an indispensable pre-condition of employment at the time of the or unfilled position which means a position more or less of similar prejudicial to himself or his co-employees under Art. 299 [284]
hiring and appointment of the permanent replacement that should the former holder of the nature as the
CONSEQUENCES OF ILLEGALITY OF DISMISSALone previously occupied by the reinstated employee 3) When separation pay is awarded as a form of “financial assistance” – separation pay in
PAL VS NRLC the form of financial assistance, which is sometimes granted to employees whose
same position win this case and be reinstated, he should vacate (Union of Supervisors NATU vs Secretary of Labor, G.R. L-39889);
OCTOBER 20, 2010 dismissal for cause has been adjudged s valid and legal, is not provided under the Labor
4) The permanent replacement cannot be uprooted from, and transferred to, another position 2) If no substantially equivalent position exists at the time of
Reverted to the social justice Code or in the rules implementing it.
under the “substantially equivalent position” doctrine since this rule applies only to illegally reinstatement, the employer should create a new equivalent position
exception prescribed in PLDT vs -This rule is based on equity and justice
dismissed employees. to which the illegally dismissed employee should be reinstated
NLRC and Abucay
5) Permanent replacement cannot be uprooted from and transferred to another position, as EVOLVING THEMES IN (Sagum FINANCIALvs CA, G.R. 158759)
ASSISTANCE
this applies to the illegally dismissed employee, not to their replacements. 3) The reinstated employee should be given separation pay (Dusit Hotel
KIND OF PAY GROUNDS TO GRANT BASIS OF Under Article 294 (297)
6) Employer may be put in a difficult position since the replacements may file an illegal Nikko vs CA, G.R. 163942)
COMPUTATION 1) WHENReinstatement
IS SEPARATIONwithout PAY IN LIEUloss ofOFseniority
REINSTATEMENTrights andJUSTIFIED?
other privileges – must be ordered if the employee
dismissal case. SEPARATION PAY Granted where the reinstatement is no Actual period 1) When the continued
is proven innocent of the chargesrelationship
against him.between employer and employee is no longer viable due to the
longer advisable because of strained when the strained relations and antagonism between TOYOTA MOTOR PHILS.
employer WORKERS ASSOCIATION VS NLRC
2) Full backwages, inclusive of allowances – computed from the timeand theemployee.
compensation was withheld
SOLIDBANK VS NLRC relations between the employee and the employee was DOCTRINE OCTOBER 19,no2007
fromOF himSTRAINED
up to theRELATIONS-
time of his actualappliesreinstatement.
when reinstatement will longer be in the best interest of both the
G.R. 165951 employer unlawfully or practicalInconsidering
the earlier rulings, it was unknown
that exist whether
betweenthe grant of
3) employeeOther and the employer,
benefits or their nor is it advisable
monetary equivalent the animosity them brought
MARCH 30, 2010 prevented about -These
by the filing of the labor case. separation pay was precluded when the employee is validly
benefits apply to constructive dismissal cases as well.
SEPARATION PAY IN LIEU OF REINSTATEMENT Employees terminated due to authorized causes are not entitled to be paid
from additional
working Strained relations areapply
questions of fact, and therefore must terminated from workbefore
on grounds laid arbiter
down in Article 297
-These do not to fixed-term employment. What be promptly
is appropriate raised
in this kind of theemployment
labor is only
-No provision in the Labor Code expressly granting separation pay in lieu of reinstatement. Jurisprudence separation pay by way of financial assistance. -Filing the
of apayment
case of illegal [282] of the Labor Code(Capili
other than serious
G.R.misconduct.
BACKWAGES Represent compensation that should have Length of the of thedismissal,
employee’s in itself,
salaries is not indicative
corresponding oftostrained relations.
the unexpired portion ofvsthe NLRC,
employment 117378)
provides that separation pay may be awarded to an illegally dismissed employee in lieu of reinstatement. been earned but were not collected because employee’s -But the filing of criminal case indicates strained relations.In(RDS
contract.
thisTrucking
case, it expanded
vs NLRC, G.R. the cases
123941) where separation pay, as
Recourse to the payment of separation pay is made when continued employment is no longer possible, in 1) When payment of separation pay to resigning employee is stipulated in the -Change financial assistance may not be given, such as: willful
of the unjust dismissal service -Asofregards
ownership and control
monetary awardsofincompanyfixed-period means that the doctrine
employments of strained
of overseas Filipino relations
workers can no longer
(OFWs), Art. be invoked
cases where the dismissed employee’s position is no longer available, or the continued relationship employment contract or CBA, or is sanctioned by established employer practice or policy; (G.R. 143171) disobedience, gross and habitual neglect of duty, fraud or
294 [279] does not also apply. The applicable law is Section 10 of RA 8042, as amended.
between the employer and the employee is no longer viable due to the strained relations between them, or 2) When separation pay is granted to those validly dismissed for non-membership in a -Nature of the position is material. It applies to positions of willful
trustbreach of trust, and
and confidence, such commission
as managerial of crime against the
employees
when the dismissed employee opted not to be reinstated or payment of separation benefits will be for the union as required in a closed-shop agreement. -Doctrine does not apply to rank-and-file employees not holding employer or his family,
positions of trustexcept when the ground cited are the
and confidence
best interest of the parties involved (Session Delights Ice Cream vs CA, G.R. 172149) 3) When separation pay is awarded when employment is deemed terminated after the 2) When "SEC.
reinstatement proves impossible, analogous
impracticable, causes for termination
not feasible, orto under
unwarranted Art. 297
forthe9e0 [282 (e),
varied
lapse of six months, in cases involving bona-fide suspension of the operation of business 10. Money Claims. - Notwithstanding any provision
like inefficiency, of law
incompetence, the contrary,
reasons and Arbiters
Labor thus hardly of thein the best interest
National Labor of the parties,
Relations Commissionsuch as:(NLRC)ineptitude,
shall have the
poor performance,
or undertaking or by analogy, “off-detail” or “floating” status under Article 301 [286]. a) Where theexclusive
employee has already and others.
original and jurisdiction to been
hear andreplaced
decide, permanently
within ninety as when his position has
(90) calendar
daysalready
after thebeen taken
filing of over by a regular
the complaint, theemployee
claims arisingand thereout ofisan noemployer-
substantially equivalent
-Length of service of the employee may or may not be considered in favor of the positionrelationship
to which heor may be reinstated;
employee employee by virtue of any law or contract involving Filipino workers
PLDT VS NLRC AND MARILYN ABUCAY b) forWhere
overseas thedeployment
dismissed employee’s position
including claims forno longer
actual, existsexemplary
moral, or is no longer available at the
and other
-No fixed amount for the financial assistance that may be given. timeofofdamage.
reinstatement for reasons not attributable to theshall
faultendeavor
of the employer;
Aug 23, 1988 forms Consistent with this mandate, the NLRC to update
-Financial assistance, instead of retirement benefits, may be granted to the employee (PAL c) When there has been long lapse or passage of time that the employee was out of employer’s
Separation pay, as a measure of social justice, shall only be and keep abreast with the developments inHOW the global
SHOULD services industry.BE COMPUTED?
BACKWAGES
vs NLRC, G.R. 159354) employ from the date of the dismissal to the final resolution of the case
allowed if the employee is validly dismissed: GENERAL RULE: Award of full backwages and other
a) For causes other than serious misconduct; d) Because of the realities of the situation
"The liability of the principal/employer and benefits the recruitment/placement agency
continues beyond the date forof the Labor
b) For causes that do not reflect on his moral e) anyByand reason of theunder
all claims injurythissuffered
section byshall
the employee
beArbiter’s
joint anddecision
several.ordering
This provision shall be and
reinstatement
character. f) The employee
incorporated in thehascontract
already for reached
overseas retirement
employment age underandthe a retirement
shall bethe plan
a condition
extends up to time said order of
g) When the
precedent forillegally dismissed
its approval. employees arebond
The performance over-age
to de or filedbeyond
by thethe compulsory retirement
reinstatement is actually carried out.
age and their reinstatement
recruitment/placement agency,would unjustly
as provided byprejudice
law, shalltheir employer for all
be answerable
money claims or damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the corporate officers and
h) When reinstatement
directors and partners asofthe a security
case may guard can no
be, shall longer be be
themselves ordered
jointlybecause he was past the
and solidarily
agewith
liable qualification
the corporationfor a security guard license.
or partnership for the aforesaid claims and damages.
3) Where the employee decides not to be reinstated as when he does not pray for reinstatement in his
CONSEQUENCES OF ILLEGALITY OF DISMISSAL complaint orliabilities
position paper but asked for separation
"Such shall continue during the entirepay periodinstead
or duration of the
4) When employment
reinstatementcontract is rendered mootnot
and shall andbeacademic
affected due by any to supervening
substitution,events, amendmentsuch as:or
a) death modification
of the illegallymade dismissed
locallyemployee
or in a foreign country of the said contract.
b) declaration of insolvency of the employer by the court
c) Fire which
"Anygutted the employer’s establishment
compromise/amicable settlement orand resulted
voluntary in its totalondestruction
agreement money claims
d) In caseinclusive
of establishment
of damages where
under thethis
employee
section is to be
shall be reinstated
paid withinhas closed
thirty (30)down or ceased
days from
operations
approval of the settlement by the appropriate authority.
No Reinstatement Ordered e) Appointment of a permanent replacement
-Labor Code does not provide as to how the award 5) To prevent
"In casefurther delay in theofexecution
of termination overseas of the decision
employment to the just,
without prejudice
valid ofor private
authorizedrespondent
Other consequences not provided under Article 294 (297) 6) Other cause
circumstances,
as definedasby law or contract, or any unauthorized deductions from the
should be reckoned and computed.
1) Award of separation pay in lieu of reinstatement, if the circumstances obtaining in a case do not a) when reinstatement
migrant worker's is inimical
salary, to the
the employer’s
worker shall be interest
entitled to the full reimbursement if his
But jurisprudence provides that the same should be b) reinstatement does
warrant the reinstatement of the illegally dismissed employee, such as, among others, when placement feenot andserve the best interests
the deductions made with of the partiesatinvolved,
interest twelve percent (12%) per
antagonism caused a severe strain in the parties’ employer-employees relationship or that the company
computed “up to the time of the finality of the c) employer is prejudiced by the worker’s continued employment
annum, plus his salaries for the unexpired portion of his employment contract or for
has completely ceased its operations. decision” where the finding of the illegality of d) That itthree
will not (3)serve
months anyfor prudent
every yearpurpose
of the as unexpired
when supervening
term, whicheverfacts have transpired which make
is less.
-This relief is not found in the Labor Code, but its award is considered a more equitable disposition. dismissal was made. (Moncielogi Corporation vs NRLC, execution on that score unjust or inequitable
2) Nominal damages in case of termination due to just or authorized cause but without observance of G.R. 144460) "In case of a final and executory judgement against a foreign employer/principal, it
procedural due process. shall be automatically disqualified, without further proceedings, from participating
-This relief is not found in the Labor Code but has been jurisprudentially enunciated in Agabon vs NLRC. in the Philippine Overseas Employment Program and from recruiting and hiring
6) Damages and attorney’s fees, although not provided under Art. 294 [279[, may be awarded, based on Civil Code Filipino workers until and unless it fully satisfies the judgement award.
provisions.
7) Financial assistance is not granted under Art. 294 [279], but on equity considerations, it is awarded to dismissed "Noncompliance with the mandatory periods for resolutions of case provided under
employees. this section shall subject the responsible officials to any or all of the following
8) Legal interest on separation pay, backwages, and other monetary awards is not provided under Art. 294 [279], but its penalties:
imposition has been upheld in many cases due to the delay in the payment thereof or because of non-compliance by the
employer of certain legal requirements. "(a) The salary of any such official who fails to render his decision or resolution
within the prescribed period shall be, or caused to be, withheld until the said official
complies therewith;

"(b) Suspension for not more than ninety (90) days; or

"(c) Dismissal from the service with disqualification to hold any appointive public
office for five (5) years.

"Provided, however, That the penalties herein provided shall be without prejudice
to any liability which any such official may have incurred under other existing laws
or rules and regulations as a consequence of violating the provisions of this
paragraph."
IN CASE OF MONEY JUDGMENTS GRANTED
BUT LATER REVERSED ON APPEAL, SHOULD
THE AMOUNT BE RETURNED?
Yes, but excluding reinstatement wages paid
during appeal
Section 18 of Rule XI, of the 2011 NLRC Rules
of Procedure, provides:
Section 18, Restitution: Where the executed
judgment is totally or partially reversed or
annulled by the Court of Appeals or the
Supreme Court with finality, the Labor Arbiter
shall , on motion, issue such order of
restitution of the executed award, except
reinstatement wages paid pending appeal.  In case valid retrenchment supervened, the computation thereof should only be up to the
Actual Reinstatement Ordered
-Full backwages and other monetary awards shall be “computed from the time (the illegally
dismissed employee’s) compensation was withheld from him up to the time of his actual
reinstatement (Art. 294 [297])
In case of continued non-compliance by the employer of the award for backwages and other
monetary obligations – not only till up to the finality of the decision, but until full payment of the
separation pay, in lieu of reinstatement
In case the dismissed employee has already reached the optional retirement age of 60 (Espejo vs
NLRC, GR. 112678) or the compulsory retirement age of 65 (St. Michael’s Institute vs Santos, G.R.
145280), the monetary awards should be computed only up to such age.
In case the employer has permanently closed, the computation thereof should only be up to the
date of closure. (Chronicle Securities Corporation vs NLRC, G.R. 157907)
effectivity date of the retrenchment. (Mitsubishi Motors Philippines Corporation vs Chrysler
Philippines G.R. 148738)
Reinstatement Ordered, Without Backwages
a) When the dismissal of the employee would be too harsh a penalty (ALU-TUCP vs
NLRC, G.R. 120450)
b) When the employer acted in good faith in terminating the employee (Yupangco
Cotton Mills vs NLRC, G.R. 94156)
c) Where there is no evidence that the employer dismissed the employee (Pepsi-Cola
Distributors vs NLRC, G.R. 100686)
Reinstatement with Limited Backwages
1) When the employer terminated the employee in good faith (San Miguel Corp. vs
Javate, G.R. 54244)
EXISTENCE OF EMPLOYER-EMPLOYEE ESSENTIAL TO CONFER JURISDICITON OVER THE LABOR ARBITER
-In case the existence of employer-employee is being contested, the Labor Arbiter has power to inquire to determine
the existence of such in the instant case. However, the determination of EE-ER relationship is not exclusive to the Labor
Arbiter; the SOLE and the Regional Director of DOLE may do as well (People’s Broadcasting Network [Bombo Radyo] vs
SOLE, G.R. 179652)
-In Santiago vs Sharp CF Management Crew (G.R. 162419), the Court made a distinction between “perfection of
employment” contract and “commencement of employment relationship”, and ruled that even in the absence of EE-ER
relationship, the Labor Arbiter still has jurisdiction.
OTHER KINDS OF EMPLOYEES WHICH THE LABOR ARBITER HAS JURISDICTION OVER ISSUES OF TERMINATION:
1) Issues involving employees in government-owned and/or controlled corporations without original
charters – employees of GOCC’s without original charter are governed by the Labor Code, thus fall
under the jurisdiction of the Labor Arbiter. GOCC’s with original charter are governed by CSC rules,
and therefore are not within the jurisdiction of the Labor Arbiter. However, in case an employee is
dismissed for offenses committed while employed by a government-owned corporation but
discovered after it was privatized, the applicable law is the Labor Code and the jurisdiction over the
illegal dismissal case belongs to the Labor Arbiter (Casino Labor Organization vs CA, G.R. 141020)
2) Issues involving alien parties;
3) Cases involving priests and ministers – insofar as the issue of employment is concerned, the fact that
the party involved is the church does not give it religious significance. Termination of service under
the grounds provided under the Labor Code warrants the jurisdiction of the Labor Arbiter (Austria vs
NLRC, G.R. 124382)
4) Cases of domestic workers or kasambahays- notwithstanding introduced by RA 6715, the Labor
Arbiter continues to have jurisdiction over dismissal cases involving the Kasambahay, regardless of
amount involving monetary claims.
In cases involving purely monetary claims, the amount is material: If the amount exceeds P 5,000, the
Labor Arbiter has jurisdiction. Otherwise, it is the DOLE Regional Director who has jurisdiction.
5) Cases involving employees of cooperatives – distinction must be made between issues involving
“employees of the cooperatives”, to which the Labor Arbiter has jurisdiction, and “members of the
cooperatives”, which the Cooperative Development Authority has jurisdiction.
6) Cases involving employees of local water utilities districts;
 REINSTATEMENT ASPECT OF THE LABOR ARBITER’S DECISION REINSTATEMENT MUST BE STATED IN THE BODY AND DISPOSITIVE PORTION OF LABOR ARBITER'S DECISION
Reinstatement under Article 229 [223] is different from reinstatement under Article 294 [279]

1) Finality- the reinstatement under Article 229 [223] has not attained finality as in fact it is the subject
of an appeal; while that contemplated under Article 294 has already become final and executory; 1) Actual reinstatement- whichREINSTATEMENT
means that OPTIONS
PENDING
the employees
OF APPEAL
THE EMPLOYER
should
APPLIES
be
reinstated to the positionTO whichALL heKINDS
occupied
OF ILLEGAL
prior to
DISMISSAL
his illegalCASES -
2) Employer's options to reinstate- the reinstatement in the former is subject to the exercise of the dismissal under the samewhatever
terms andthe conditions
grounds prevailing
may be, reinstatement
prior to his
option by the employer dismissal or separation or,under if no Art
longer
229available,
(223) shall
viable
be immediately
or feasible, to a
NO such option is available to the employer except to reinstate the employee to his former position or In case employee fails
substantially-equivalent to return
position;
executory pending appeal, irrespective of the
to a substantially equivalent position, if the former position is no longer available or reinstatement after being orderedgrounds
to return ontowhich they are based. 
thereof is not viable or feasible. work by the employer - it must be
shown
2) Payroll that the employer
reinstatement- Lansangan
which gaverule-
means the
thatimmediate
the employeereinstatement
should be
3) On nature of duty of Labor Arbiter to implement order- it is ministerial upon the labor arbiter to employee
reinstated merelyainreasonablepending
the payroll period
of the of
appeal does not
company applyrequiring
without when thehim
implement his order of reinstatement which is self-executory in character time
to report to to
back wind
his up its dismissal
work current is legal but reinstatement is ordered
it is not ministerial as it requires the filing of a motion for the issuance of write of execution with the preoccupations, rather than other reasons like equity and
for some
labor arbiter of origin before he can implement the reinstatement order directly and immediately asking justice.
compassionate
Reinstatement pending
them to report appeal
back not proper if antipathy and antagonism
to work
4) On the necessity for issuance of writ of execution- in the former, a writ of execution is not (BuenviajeBanking
exist (Equitable vs CA, G.R. 147806)vs NLRC, G.R. 102467)
Corporation
necessary to enforce the reinstatement order, while in the latter, a writ of execution is indispensable
Employer has no way to stay the execution of
to effect reinstatement.
the judgement of reinstatement; he is
IssuanceIn case
of a TRO
position
by the
already
CA orfilled
SC merely
up, suspends the implementation
merely made to choose between actual
and enforcement of the reinstatement
must be reinstated to a but it does not have the right to
reinstatement or payroll reinstatement. 
nullify substantially
the right of the employee
equivalent to reinstatement (Zamboanga CIty
position
The prerogative to choose between the
RULES ON EXECUTION OF REINSTATEMENT ASPECT OF THE LABOR ARBITER'S DECISION Water(Bondoc
District vs Buat, G.R. 104389)
vs People's Bank and Trust
modes of reinstatement belongs strictly with
-The perfection of the employer's appeal has the effect of staying the execution of the decision of the Co, G.R. L-43835). Reinstatement to
the employer.
Labor Arbiter on appeal except the partial execution for reinstatement pending appeal which is self-
a lower rank is not proper
executory under Article 229. In Panuncillo
(Panuncillo vs CAP vs CAP Philippines
Philippines, G.R. (G.R. 161305), the
employer is not liable to pay backwages, as there is no
161305).
showing that a writ of execution was issued.
IS THERE A NEED FOR A WRIT OF EXECUTION FOR THE REINSTATEMENT ORDER OF THE LABOR  
ARBITER TO BE CARRIED OUT? -A writ of execution is necessary to effectuate the
-No writ of execution is required to implement the reinstatement aspect of the Labor Arbiter's WHAT IS THE LIABILITY OF THE EMPLOYER WHO VIOLATES THE LABOR ARBITER'S
reinstatement if such reinstatement is ordered not by the
decision (Pioneer Texturizing vs NLRC, G.R. 118651) REINSTATEMENT ORDER Labor Arbiter, but by the NLRC

1) He shall be liable to pay the accrued salaries of the reinstated employee as a

consequence of such non-reinstatement in the amount specified in-Inthe Roquero vs PAL (G.R. 152329), a writ of execution
decision;
INSTANCES WHEN WRIT OF EXECUTION MAY STILL BE REQUIRED: was ordered, and therefore the employer is not
2) He may be cited for contempt.
1) When the employer disobeys the Rules-prescribed directive to submit a report of compliance entitled to the backwages
within 10 calendar days from receipt of the decision; or
2) When the employer refuses to reinstate the dismissed employee. 
REVERSAL OF LABOR ARBITER'S TEST TO DETERMINE IF THE CASE FALLS UNDER THE GARCIA DOCTRINE
3) When it is the NLRC, CA, SC, which orders the reinstatement of the employee, as what applies is
REINSTATEMENT ORDER BY NLRC HIGHER
1) There must be actual dealy or the fact that the order of reinstatement pending appeal
not Art. 229 (223) but Art. 230 (224), which contemplates the issuance of a writ of execution on a
COURTS - employee is entitledwas
to the
notwages,
executed prior to its reversal; and
judgment within 5 years from the date it becomes final and executory. 
allowances, benefits that accrued. 
2) The delay must not be due to the employer unjustified act or omission. If the delay is due
to its unjustified refusal, it may be still be required to pay the salaries notwithstanding the
reversal of the Labor Arbiter's decision.
a) ON PAYROLL - Wenphil doctrine applies  IF EMPLOYEE WAS ACTUALLY REINSTATED

Wenphil Corporation vs Abing (G.R. 207983) IF REINSTATEMENT ORDERED BY THE NLRC, NOT BY LABOR
"the period for computing the backwages due to the respondents during the period of appeal should b) ACTUAL REINSTATEMENT    ARBITER, AND SUBSEQUENTLY REVERSED BY THE CA OR THE
end on the date that a higher court reversed the labor arbitration ruling of illegal dismissal" SC,(Bergonio
-Interim actual dismissal ends on the finality of such reversal. IS THE EMPLOYER
vs South LIABLE TO PAY BACKWAGES? 
East Asian
Airlines, G.R. 195227) 
-It depends, on whether a writ of execution has been issued.
-In other words, should the reversal of the decision be appealed, thus interrupting the finality
MUST THE EMPLOYEE RETURN THE WAGES RECEIVED WHILE ON PAYROLL REINSTATEMENT? of the decision, employee remains in the position reinstated -This
andisshould
because
be reinstatement
allowed to workordered by the NLRC requires a
Yes, under the Genuino Doctrine (Genuino vs NLRC, G.R. 142732) writ of execution before it may be effected

-Employee must refund the wages given while on payroll reinstatement, if reinstatement ordered by IF EMPLOYEE NOT REINSTATED IN EITHER POSITION OR IN PAYROLL
the LA is reversed on appeal.                  WILL THE REINSTATEMENT OF AN EMPLOYEE TO AN ERRONEOUS POSITION MAKE HIM LIABLE TO PAY
NOTE: Accrued backwages are reckoned from the time the employer received a copy of the Labor THE BACKWAGES, UPON REVERSAL OF THE DECISION OF REINSTATEMENT, WHICH LED TO HIS
Arbiter's decision, declaring the employee's termination illegal and ordering their reinstatement up DESIGNATION TO HIS FORMER POSITION? Roquero Doctrine - (Roquero vs PAL, G.R. 152329) - refusal of the
to the date of the decision of the appellate tribunal overturning that of the Labor Arbiter. It is not the employer to reinstate the employee despite the order of the Labor
date of finality of dismissal, nor the receipt of the decision by the employee, but the date that the NO. The Garcia doctrine still applies. Arbiter will not exculpate them from their liability to pay the
order of reinstatement was reversed by the lower court. (Pfizer vs Velasco, G.R. 177467) In the case of College of Immaculatereinstatement
Concepcion vswages and benefits
NLRC (G.R. 167563),ofwherein
the employee, reckoned and
the dismissed
  employee was reinstated as Department computed
Dean onfrom the time
payroll the employee
reinstatement, washe
when ordered
shouldreinstated
have only by
Illustration: the Laborthe
been reinstated as full-time faculty member, Arbiter untilhethe
position date
held tillofthe
reversal
time ofon appeal. the Court
dismissal,
ruled that 
Labor Arbiter - orders reinstatement of employee. Appeal is made by employer
Garcia
“In this case, there is even more reason Doctrine
to hold (Garcia vsentitled
the employee PAL, G.R.to164856) - if there
the salaries was delay in
he received
CA- Reverses the LA order of reinstatement, employee appeals pending appeal, because the NLRC did thenot
reinstatement of the
reverse the LA's employee
order without fault
of reinstatement, butofmerely
the employer,
It is from this period that the period for counting backwages is cut declared the correct position to whichemployee
respondentmayisbe
tobarred from collecting
be reinstated, i.e., thataccrued backwages.
of full-time professor,
and not as Dean.”
SC- Upholds the reversal by the CA of the decision ordering reinstatment. 
 SIX INDICATORS OF PROJECT EMPLOYMENT
 
1) THE DURATION OF THE SPECIFIC/IDENTIFIED UNDERTAKING FOR WHICH THE WORKERS IS ENGAGED IS REASONABLY
DETERMINABLE
-Project employee is assigned to a project which begins and ends at determined or determinable times. To underscore
the necessity to fix the duration of the specific project or undertaking, for which the project has been engaged, it is
required that "a day certain" should be agreed upon by the parties.

2) THE DURATION, AS WELL AS THE SPECIFIC WORK/SERVICE TO BE PERFORMED, IS DEFINED IN AN EMPLOYMENT

AGREEMENT AND IS MADE CLAER TO THE EMPLOUYEE AT THE TIME OF HIRING
-A written employment contract is an indispensable requirement for the project employment to be valid. 
-Failure to present contract of project management can be construed that the employee is regular
-Project employees should be informed of their status as well s the duration and other details of their engagement as
such right at the inception of the employment relationship
-Repeated renewals of pro forma employment contracts can be an indication of project employment (Glory Philippines
vs Vergara, G.R. 176627)

PROJECT EMPLOYMENT -  Project employee in the construction industry:
Litmus test for project employment: whether the The issue of project employment has continuously hounded the construction industry. In line
project employees were assigned to carry out a with this, the DOLE issued Department Order No. 19, which categorizes employees in the
specific project or undertaking, the duration and construction industry are generally categorized as follows:
scope of which were specified at the time the
employees commenced employment
1) Project employees referring to those employed in connection with a
particular construction project or phase thereof and whose employment is
coterminous with each project or phase thereof to which they are
assigned.
2) Non-project employees- referring to those employed without reference to any
particular construction project or phase thereof. May be further classified as
follows:
a) probationary employees- those who, upon completion of the
Two categories of project employees: probationary period, are entitled to regularization. Upon their
a) A particular job or undertaking that is within engagement, probationary employees should be informed of the
the regular or usual business of the employer reasonable standards under which they will qualify as regular employees.
company, but which is distinct and separate, and
identifiable as such, from the other undertakings b) regular employees- those appointed as such or those who have
of the company; completed the probationary period or those appointed to full up regular
b) A particular job or undertaking that is not positions vacated as a result of death, retirement, resignation, or
within the regular business of the corporation termination of employment of the regular holders thereof.  is an indication that the employees are not project employees but regular employees.
c) casual employees- those employed to perform work not related to the
main line of business of the employer. Casual employees who are
employed for at least one year, whether continuous or broken, shall be
considered regular with respect to the activity in which they are employed
and their employment shall continue for as long as such activity exists,
unless the employment is terminated sooner by the employer for a just or
authorized cause, or voluntarily by the employee.
THREE KINDS OF TERMINATION INVOLVING PROJECT EMPLOYEES:
1) Termination of project employees prior to the completion of project
or any phase thereof
-If project has not yet been completed, but the employee is dismissed
without just or authorized cause, the employee is entitled to
reinstatement with backwages to his former position or substantially
equivalent position.
-If reinstatement is no longer possible, the employee is entitled to his
salaries for the unexpired portion of the agreement (Filipinas Pre-
Fabricated Building Systems vs Puente (G.R. 153832)
3) The work/service performed by the employee is in connection with the particular project or undertaking for which he
is engaged
-Assignment to other project or undertaking not connected in any way with or related to the project or undertaking
particularly contemplated in the contract of employment would make him regular and not project employee
-Employee may attain "regular project employment status"
-In this scenario, a work pool may exist although the worker in the work pool do not receive salaries and are free to
seek other employment during temporary breaks in the business.
may come in two forms:
4) FREEDOM OF THE EMPLOYEE TO OFFER HIS SERVICE TO OTHER EMPLOYERS WHILE NOT EMPLOYED AND AWAITING
ENGAGEMENT BY THE CURRENT PROJECT EMPLOYER
a) One where employment has been fixed for a
-This means that in order to be a project employee, his employment should not be continuous, and there should be
specific project or undertaking, the completion or
intervals between project employment contracts. 
termination of which has been determined at the
-During the intervals, the employee should have the liberty to look for other possible employers for purposes of offering
time of the engagement of the employee;
his services.
b) One where the work or service to be
performed is seasonal in nature and the
Difference between continuous and intermittent rehiring:
employment is for the duration of the season.
1) There is a continuous (as opposed to intermittent) rehiring of the project employee even after cessation of a project
for the same tasks or nature of tasks. Meaning: there is no interval between one project and another; and
2) The tasks performed by the alleged "project employee" are vital, necessary and indispensable to the usual business
or trade of the employer
5) THE TERMINATION OF PROJECT EMPLOYMENT IN THE PARTICULAR PROJECT/UNDERTAKING IS REPORTED TO THE
DOLE REGIONAL OFFICE HAVING JURISDICITON OVER THE WORKPLACE
-Failure to file termination reports after every completion of a project or any phase thereof with the nearest PEO-DOLE
 
-Under DOLE DO. 19, the employer is required to report to the nearest Public Employment Office of DOLE the fact of
termination of project employees as a result of the completion of the project or any phase thereof in which one is
employed.  TERMINATION OF PROJECT EMPLOYMENT
-Termination of employment must be done within 30 days from completion of work. 
-A project employee enjoys security of tenure
6) PAYMENT OF COMPLETION BONUS UPON TERMINATION OF PROJECT during the duration of the project employment.
-Department Order No. 19, s. 1993, provides that in the absence of an undertaking that the completion bonus will be Termination of employment during the period of
paid to the employee, the employee may be considered a non-project employee, to wit: the project must be for a lawful cause and must be
"3.4 Completion of the project. Project employees who are separated from work as a result of the completion of the done in a manner which affords him proper notice
project or any phase thereof in which they are employed are entitled to the pro-rata completion bonus if there is an and hearing. 
undertaking for the grant of such bonus. An undertaking by the employer to pay a completion bonus shall be an
indicator that an employee is a project employee. Where there is no such undertaking, the employee may be
considered a non-project employee.
DUE PROCESS
-Project employees whose employment is terminated as result IN TERMINATION
of the completionOFof PROJECT EMPLOYMENT
the project are not given
-No prior notice is required in the termination of employment of project
separation pay; they are given completion bonus. 
employees, thus Agabon Doctrine does not apply (D.M. Consunji vs
Gobres, G.R. 169170)
-Being project employees whose nature of employment they were fully
informed about at the time of their engagement, their employment legally
ends upon completion of said project or any phase thereof.
-Burden of proof: lies with the employer of proving that they were
dismissed for just cause if the former are dismissed before the completion
of the project, or any of the phases thereof for which their services were
contracted.

2) Termination of project employees upon completion of project or any WHEN IS PRIOR NOTICE REQUIRED FOR TERMINATINO OF PROJECT
phase thereof; EMPLOYMENT
-Project employees are not entitled to separation pay if their services -If the project is terminated prior to the completion thereof;
are terminated as a result of the completion of the project or any -If the project has already become a regular employee at the time of the
phase thereof in which they are employed.  termination

RELIEFS OF REINSTATEMENT AND BACKWAGES 

3) Termination of project employees after completion of project or
-When an employee has been terminated prior to completion of project
phase thereof;
without just or authorized cause, he is entitled to reinstatement and full
-Project employees are presumed regular employees if they are
backwages.
allowed to work beyond the completion of the project or any phase
-However, when the project is completed during the pendency of the
thereof to which they were assigned or after the "day certain" which
ensuing suit for illegal dismissal, the employees can no longer be
they and their employer have mutually agreed for its completion
reinstated, but are entitled to backwages from the date of the termination
(Dacuittal vs LM Camus Engineering Corp., G.R. 176748)
of their employment until the actual completion of the project or work
(Filipinas Pre-Fabricated Building Systems vs Puente, G.R. 153832).
SEASONAL EMPLOYMENT Under the following circumstances, a supposedly fixed term employment may be deemed regular: EMPLOYMENT STATUS OF RESIDENT PHYSICIANS IN-TRAINING 
-similar to project employment, albeit involves work or service that is seasonal in nature or lasting for the duration There is  employer-employee relationship between physicians
of the season.  a) if there is no written contract expressly stipulation fixed-term and training, unless:
-Jurisprudence recognizes the existence of "regular seasonal employment", wherein after repeated hiring over b) if there a written contract purporting to reflect an agreement on fixed-term but the same was not
seasons, they attain regular status.  presented in evidence. a) there is training agreement between them; and
Requisites asked for under the case of Hacienda Fatima vs National Federation of Sugarcane Workers (G.R. c) If there is written contract but it failed to specify the date of its effectivity and the date of its expiration. b) the training program is duly accredited or approved by the
149440): appropriate government agency. 
-Validity of fixed-term employment not affected by the nature of work
1) The seasonal employee should perform work or services that are seasonal in nature; -Once an employee becomes regular and attains security of tenure, it cannot be circumvented by fixed-term If any of the foregoing requisites is not present, the resident
2) They must have also been employed for more than one season. employment physician should not be considered regular employees, the
-Prior notice to terminate is not necessary, as there could have been no illegal dismissal when the services nature of their work being usually necessary or desirable in the
-Under the same case, regular seasonal workers, if not rehired in the next season, are deemed illegally dismissed were terminated on expiration of their contracts. There is no need for notice, as the employee knows when usual business or trade of the hospital. 
the contract would expire (Labayog vs M.Y. San Biscuits, G.R. 148102)
Regular employees are different from regular seasonal employees. The former are employed the whole year
round, the latter is merely employed during the season of the year (Universal Robina Sugar Milling Corporation vs EMPLOYMENT STATUS OF WORKING CHILDREN
Acibo, G.R. 186439). -Fixed-term employment, if shown to be a way to circumvent regularization, may be realized as regular
-Regular seasonal employees do not have the same status as regular employees, and thus do not receive amounts employment.  -Working children may become employees in the light of the
considered as part of a compensation and benefits scheme for regular employees (Ampeloquio vs Jaka -Fixed--term employment for less than six months, akin to probationary employment (Caparoso vs CA, G.R. following:
Distribution, G.R. 196936) 155505)
-Employees allowed to work beyond fixed-term employment become regular employees (Viernes vs NLRC, 1) Article 295 [280] of the Labor Code does not distinguish
G.R. 108405) regularity of employment on the basis of age. It is the nature of
-Hiring and rehiring of employees on a 5-month basis circumvents the right to security of tenure (Pure Foods work or the length of service which determines regularity of
CASUAL EMPLOYMENT 
vs NLRC, G.R. 122653) employment. If the child is made to perform activities which are
There is casual employment where and employee is engaged to perform a job, work, or service which is merely
-Successive renewals of fixed-period contracts may also result to regular employment (Philippines Semi usuallyperiod
necessary
incidental to the principal business of the employer, and such job, work or service, is for a definite madeor desirable in the usual business of the
Conductors vs Fadriquela, G.R. 141717) employer, or he is allowed to work beyond one year, his
known to the employee at the time of engagement. 
-An employee cannot be an independent contractor under a fixed-term contract. There can be no trilateral employment is deemed regular. 
relationship in this case. 
-Casual employees become regular after one year of service, by operation of law. 
-A regular employee can also be a fixed-term employee (Fuji Television Network vs Espiritu, G.R. 204944) 2) Nosuch
employer
-No regular appointment papers necessary for casual employees to become regular; he becomes on theisvery
permitted to discriminate against any person in
-Employment on "day to day" basis may ripen to regular employment (Baguio Country Club vs NLRC, G.R. respect to terms and conditions of employment on account of his
day immediately after the end of his first year of service. 
71664) age. 
-One year period is reckoned from the hiring date.
-To be legal, the termination of casual employment should be made before lapse of one year period. 
-Grant of status of regularization extends to those who did not assert their regular status before 3) Working children,
the court (San under the Child and Youth Welfare Code,
EMPLOYMENT STATUS OF PART-TIME EMPLOYEES EMPLOYMENT STATUS
Miguel OF
Corporation vs NLRC, G.R. 147566). shall have the same freedom as adults to join the collective
-The Labor Code does not provide a definition for part-time work. They are DOMESTIC WORKERS bargaining union of their own choosing in accordance with
workers whose normal hours of work are less than those of comparable (KASAMBAHAY) existing law. 
FIXED-TERM EMPLOYMENT full-time workers.  -Employment remains fixed-
-The Labor Code does not provide for fixed-term employment. It was the case of Brent vs Zamora (G.R. 48494). -Under the "Explanatory Bulletin for Part-Time Employment dated Jan 2, term in nature. It is the only
-Two guidelines for validity of fixed-term employment 1996, security of tenure should be applied to part-time employees as well. kind of employment which EMPLOYMENT STATUS OF HOMEWORKERS
Thus, they may not be dismissed without just or authorized cause. is expressly required under -Homeworkers may attain regular status, for the following
a) the fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, -Under the same Bulletin, the following are indicators of regular the Labor Code to be on a reasons:
duress or improper pressure being brought to bear upon the employee and absent any other circumstances employment of part-time workers: fixed-term basis.  a) Art. 295 [280] of the Labor Code does not distinguish regularity
vitiating his consent. of employment on the basis of the place of wor- in the field or
b) it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms a) The terms of his employment show that he is engaged as regular or within the plant or office of the employer or in the home of the
with no moral dominance whatever being exercised by the former on the latter.  permanent employee; worker. It is the nature of work or length in service, which
b) The terms of his employment indicate that he is employed for an determines such regularity. EMPLOYMENT STATUS OF
-Thus, the Brent ruling only applies when it appears that the employer and employee are on equal footing  indefinite period; WOMEN WORKING IN
-A written contract is necessary for the validity of a fixed-term employment  c) He has been engaged for a probationary period and has continued in his b) Homeworkers have the right to form, join, or assist
NIGHTCLUBS AND SIMILAR
employment even after the expiration of the probationary period. organizations of their own choosing,ESTABLISHMENTS
in accordance with the law;
d) The employee performs activities which are usually necessary or Pursuant to Article 136 [138]
desirable in the usual business or trade of the employer. Termination of Fixed-term contract prior to lapse of expiration must be for a just or authorized cause (Medenilla c) Employers are required to reportof the homeworkers'
the Labor Code and its
vs Philippine Veteran's Bank, G.R. 111212) employment for purposes of SSS, Medicare, and ECC
implementing rules, women
-Workers who are initially hired as temporary part-timers -In may case of illegal dismissal under a valid fixed-term contract, the liability of the employer is only on the salary for
demand requirements.  working in night clubs and
that their status be converted not to regular part-timers, but the to
unexpired
regular portion of the fixed term stipulated in the employment contract. Reliefs provided under Art. 294 similar establishments are
full-timers if the circumstances warrant such conversion. In [280]
caseare
thenot available in illegal dismissal cases (New Sunrise Metal Construction vs Pia, G.R. 171131).
court considered regular employees
orders this conversion, the management does not have the prerogative to thereof considering that they
-In case
determine whether to regularize or not (Philippine Airlines vs Pascua, G.R. of dismissal when the employee was allowed to work even after the lapse of period fixed-term are made to perform activities
143258). employment, and therefore was of regular status, the employee is entitled to the reliefs under Art. 294 [280]. that are usually necessary or
desirable in the usual business
or trade of their employer
EMPLOYMENT STATUS OF WORKING SCHOLARS  EMPLOYMENT STATUS OF PROFESSORS, INSTRUCTORS, AND TEACHERS
FIXED-TERM EMPLOYMENT FOR OFW'S
-Under the Rules to Implement the Labor Code, there is no employer- -Governing law for faculty are the Manuals of DepEd, not the Labor Code.
EMPLOYMENT STATUS OF FIELD PERSONNEL
-OFW's can never acquire regular employment (Millares vs NLRC, 110524, employee relationship between students, on the one hand, and
Field personnel may achieveAPPOINTMENT
regular status, under
OF DEAD,any IS
ofFOR
the A FIXED-TERM
second ruling) schools, colleges, or universities on the other, where the students are
following conditions:  -The position of dean is normally an employment for a fixed-term (AMA Computer College vs Austria, G.R.
-Contract of employment of an OFW for an indefinite period is not valid. given real opportunity, including such facilities as may be reasonable
and necessary, to finish their chosen courses under such arrangement.  164078)
-OFW contracts cease upon their expiration. Rendition of service beyond the
PROBATIONARY EMPLOYMENT REGULAR OR PERMANENT STATUS OFstudent
TEACHERS IN given
BASICaEDUCATION a) if the
SCHOOL nature of their
PERSONNEL UNDER work
THEis 2008
usually
-Consistent necessary
MANUAL FORorHIGHER
appointment desirable
for a long period of time for the position of dean is does not give any vested right to
EDUCATION
period in the contract does not mean automatic renewal thereof (Unica vs -But if the is not chance to learn, nor given the facilities
ART. 296 [281] in the usual business or tradeoccupyof theitemployer;
permanently (Aklan College vs Guarino, G.R.I 152949).
Anscor Swire Ship, G.R. 184318) for learning, then it may be construed that there is an employer-
"School personnel" under the 2011 Revised
employee Manual for Basic Education is used to describe, in
relationship. "Members of the Academic Community" -Appointment referstoto
any
theadministrative positionof
general membership (dean,
everydirector, college secretary)
higher education cannot give rise to a status of
institution
-Nature of work does not confer regular employment status to OFW's.
b) after successfully hurdling theandperiod
with permanency dulyofor
probationary
additionalbyorthe
second security(CHED)
of tenure (La Salette of Santiago vs NLRC, G.R. 82918).
-Probationary employment of OFW's does not mean that they becomeA probationary employee is one who, general, the persons, singly-Filamer
or collectively, working
Christian in avsprivate
Institute school,
IAC (G.R. sucha as
75112)- follows:
school cannot deny established in accordance law authorized Commission to operate certain higher education
employment;
regular employees after; it only means that they are eligible for rehirefor a given period of time, is on
after liability as employer when its working student, who was not the driver programs. They are classified as follows:
their employment contract has expired.  observation, evaluation, and trial by an a) "school head" refers to the chiefschool
of the executive officer
vehicle of a allowed
but was private school;
to do so by the school driver,
employer during which the employer b) "other school officials" include other school officers, including teachers c) after serving one year as provided
those under 2ndformally
par. of engaged
Art.
-Series of re-hiring cannot ripen into regular employment runs over a person, who claims damages arisingwho
fromare occupying
such act.  a) "Academic Personnel" includes who are in actual teaching or in research assignments, either
determines their fitness for employment supervisory positions of responsibility and are involved in policy implementation in a private on 295 [280].or part-time basis;
full-time
school. b) "Academic support personnel" are those who perform certain prescribed academics functions directly supportive of
c) "Academic personnel" includes all school personnel who are formally engaged in actual teaching, such as registrars, librarians, guidance counselors, researchers, and other persons performing similar
teaching service or in research assignments, either on full-time or part-time basis, as well as functions including institution officials responsible for academic matters and affairs.
those who possess certain prescribed academic functions directly supportive of teaching, such c) Board of trustees/regents/governing board- is the policy making body of a higher education institution, which
as registrars, librarians, guidance counselors, researchers, and other similar persons. They exercises all the corporate powers of the institution and is answerable to all members of the academic community.
include school officials responsible for academic matters, and other school officials.  d) "Head" refers to the chief executive officer of a higher education institution.
d) "non-academic personnel" means school personnel usually engaged in administrative e) "Non-academic personnel" means the rank-and-file employees of the institution engaged in administrative functions
functions who are not covered under the definition of academic personnel. They may include and maintenance of a higher education institution.
school officials.  f) "Other institution officials" refers to other officers, including academic personnel who are occupying supervisory
positions involved in the implementation of policies of a higher educational institution.
PROBATIONARY PERIODS OF TEACHING AND
NON-TEACHING PERSONNEL
2011 RULES FOR BASIC EDUCATION
Sec. 63 Probationary Period; Regular or
Permanent Status. A probationary period of not
more than three years in the case of school
teaching personnel and not more than six months
for non-teaching personnel shall be required for
employment in all private schools. A school REGULAR STATUS OF TEACHERS IN BASIC EDUCATION
personnel who has succesfuly undergone the REGULAR
Under the 2011 Revised Manual for Basic Education, a school teaching personnel mayOR PERMANENT STATUS OF TEACHERS IN HIGHER EDUCATION
probationary period herein specified and who is become permanent upon compliance with the following requisites:
fully qualified under the existing rules and Requisites for regular employment:
standards of the school shall be considered 1) He has successfully undergone the probationary period of not more than three (3 years);
permanent.  and Sec. 118, of the 2008 Manual for Teachers in Higher Education provides:

In sum: a) he/she is a full-time teacher;

2) He has fully qualified under the existing rules and standards of the school.
1) For school teaching personnel - not more than b) he/she must have satisfactorily completed his/her probationary employment, i.e. not more that 6 consecutive
three years Minimum educational qualifications for teachers in pre-school, elementary,semesters or 9 consecutive trimesters, as the case may be.
and secondary
2) For non-teaching personnel- not more than six levels of education in private schools must possess appropriate educationalc)qualifications
such service must
and have been satisfactory
months must pass the Licensure Examination for Teachers.  d) He/she must possess the minimum qualifications required by the Commission (CHED) and the institution
Other minimum qualifications: e) He/she must be re-hired or re-appointed immediately after the end of his/her probationary employment.
a) in the kindergarten and elementary levels - bachelor's degree in education
PROBATIONARY PERIOD UNDER THE 2008 b) in the secondary level of instruction, the following are required:  -Only full-time, and not part-time, teachers may become regular employees
MANUAL FOR HIGHER EDUCATION -Full
1) for academic subjects - a bachelor's degree in education, or equivalent, or time employees
a bachelor of are those who meet all of the following requirements:
Sec. 117 Probationary period. An academic arts, with such additional number of professional education subjects as may be required, to
teaching personnel who does not possess the teach largely in their major or minor fields of concentration. 1) He/she must possess at least the minimum academic qualifications prescribed under the Manual for all academic
minimum academic qualifications prescribed personnel;
2) for vocational subjects - a graduate of any bachelor's degree, with knowledge of vocational
under Sections 35 and 36 of this Manual shall be courses to be taught. 2) He/she is paid monthly, or hourly, based on the regular teaching loads as provided for in the policies, rules and
considered as part-time employee, and therefore standards of the Commission (CHED) and the institution;
cannot avail of the status and privileges of a 3) He/she devotes not less than 8 hours of work a day to the school;
probationary employment. A part-time employee 4) He/she no other remunerative occupation elsewhere requiring regular hours of work, except when permitted by the
When does a hiring of a teacher in higher education become regular?
cannot acquire regular permanent status and higher education institution;
hence, may be terminated when a qualified 5) He/she is not teaching full-time in any other higher education institution.
a) for basic education - upon the lapse of the probationary period of employment
teacher becomes available. 
b) for higher education - upon the lapse of the probationary period of employment and if
-Teachers who do not meet all of the criteria are part-time personnel. Regardless of length of service, a part-time
subsequently re-hired or re-appointed immediately after the end of his/her probationary
The probationary employment of academic teacher can never acquire permanent status. Due process is not required to terminate employment (St. Mary's
employment. 
teaching personnel shall not be more than a University vs. CA, G.R. 157788)
period of six consecutive semesters or nine -If regular teacher requests for part-time teaching load, then they become part-time employees of the school.
-3 year period must be distinguished from 3 school year period.
consecutive trimesters or satisfactory service, as -Part-time teachers are only entitled to the security of tenure during the effectivity of the part-time employment. After
-Notice of the standards must be given to the teacher before the commencement of
the case may be.  the end of semester of employment, there is no obligation on the part of the school to renew the contract of
employment. Otherwise, termination of employment is flawed (Colegio del Sanstisimo vs
employment for the next period, semester, or term.
Rojo, G.R. 170388)
in sum:
1) if on a per semester basis- not more than a
RELIEFS READILY AVAILABLE TO ILLEGALLY DISMISSED PROBATIONARY TEACHERS -
period of 6 consecutive semester of satisfactory MAY PROBATIONARY PERIOD BE EXTENDED 
reinstatement to serve the remaining portion of the contract. 
service; or -Extension must be mutually agreed upon in writing
-In case of acrimony between the parties, the employee is entitled to the backwages for the
2) if on a per trimester basis- not more than a -While the Labor Code does not provide for the extension of probationary period, such extension is allowed upon the
remainder of the three-year probationary period. 
period of 9 consecutive trimesters of satisfactory mutual agreement by the employer and the probationary employee which, for purposes of evidence, should be stated
service. and confirmed in a written instrument (Mariwasa Manufacturing vs Hon. Leogardo, G.R. 74246)
EMPLOYMENT STATUS OF A TEACHING PERSONNEL APPOINTED TO AN ADMINISTRATIVE
-Without the benefit of a written agreement, termination during or after the lapse of extended probationary period
POSITION IN AN ACTING CAPACITY
would amount to illegal dismissal
-Due process need not be observed in terminating an acting appointee, and acting appointee
-Periods under the Manuals are the maximum, is not entitled to separation pay
thus the actual probationary periods may be less
than those provided under the Manuals.  WHAT IS THE BEST EVIDENCE TO PROVE THAT THE EMPLOYEE FAILED TO MEET THE REASONABLE
"Termination
-Schools cannotduedepart
to failure
fromto the
qualify
ruleas
onregular
the employee in accordance with reasonable standards made known by the employer to STANDARDS? The performance evaluation report or other related documents. Thus, if the employer fails to
the employee
period at the startemployment
of probationary of the employment"
under theis uniquely applicable only to probationary employees. No other form of employment adduce this kind of evidence, the termination of the probationary employment grounded on failure to qualify
may be
Manuals.terminated on this ground.  as a regular employee would necessarily be declared illegal (Tamson's Enterprises vs CA, G.R. 192881).
-The "Adequate Performance Test", as laid down in Abbott Laboratories Philippines vs Pearlie Alcaraz (G.R. 192571), provides that 
-Totality of circumstances must be taken into account to determine if employer sufficiently informed the probationary employee of -If an employee is dismissed prior to the expiration of his probationary employment for unsatisfactory
the standards before the commencement of employment performance, and the dismissal is declared illegal, he may be reinstated to the original position. If during the
-Employee must be informed of the standards at the start of his engagement, not in the course thereof or towards its end, otherwise reinstatement he acquires a satisfactory rating, it will not be given weight, the point of question being his
he becomes a regular employee from day one of his employment.  performance during the probationary period of his employment (Lucero vs CA, G.R. 152032)
-When employer apprises the employee that he will be subjected to performance evaluation on a particular date, it is an admission
that the reasonable standards have been made known to the employee prior to the employment (Orient Express Placement
Philippines vs NLRC. G.R. 113713)
 EXCEPTIONS TO THE RULE THAT THE LABOR ARBITER HAS EXCLUSIVE JURISDICTION OVER ILLEGAL
DISMISSAL:

1) When the Secretary of Labor and Employment (SOLE) or the President exercises his
power under Art. 278(g) [263(g)] of the Labor Code to assume jurisdiction over
national interest cases and decide them himself;
2) When the NLRC exercises its power of compulsory arbitration over national interest
cases that are certified to it by the SOLE pursuant to the exercise by the latter of his
certification power under the same Art. 278 [263(g)]
3) Voluntary arbitrators or a panel of Voluntary Arbitrators under Art. 274 [261] and 275
[262].

PROBATIONARY EMPLOYMENT (Insert Art. 296 [281]) PROBATIONARY AND FIXED-TERM EMPLOYMENT ARE DIFFERENT GROUNDS
HOW TO TERMINATE
IS JURISDICTION ON THE EMPLOYMENT
ISSUE OF ILLEGAL OF PROBATIONARY EMPLOYEEON THE VOLUNTARY
DISMISSAL CONFERRED
1) just causes
TERMINATION
ARBITRATORS? OF PROBATIONARY EMPLOYMENT
-A probationary employee is one who, for a given period of time, is on observation, evaluation, and trial by an employer In probationary employment, both the employer and the employee mutually intend to make the employment status of 2) authorized
-Probationary employeescauses
enjoy security of tenure only during the period of their probationary employment. Upon the
during which the employer determines whether or not he is qualified for permanent employment.  the latter regular and permanent after he shall have successfully hurdled and passed the trial period. No such intention By3)agreement
expiration failure
of the to qualify
of the as
probationary a period,
regular
parties employee
probationary
involved in accordance
employees
(7K Corporation with
no reasonable
longer
vs Albarico, enjoy
G.R. standards
the
182295) constitutional protection of security
-A probationary appointment is made to afford the employer an opportunity to observe the fitness of a probationary exists between the parties in a fixed-term employment contract. Hence, at the expiraion of the mutually agreed fixed- madebasis:
of tenure. 
Legal known by the employer to the employee at the time of the engagement.
employee while at work, and to ascertain whether he will become a proper and efficient employee.  term, the employment relationship is ended and the employee cannot claim regularity of employment.  Conditions for termination
1) Par.(c) of Art. 217, which provides
Requisites for a valid probationary employment: -It must-Procedural
be exercised duein process
accordanceis only
with required for the
the specific first two grounds.
requirements Thus the twin
of the contract;
Probationary period cannot be stipulated within a fixed-term employment contract (Servidad vs NLRC, G.R. 128682) requirements
-The dissatisfaction onofthe
(c) Cases notice
partand
arising from hearing
of thetheemployershould be complied
must
interpretation beorreal andwith in case
in good
implementation ofthe
faith; termination
collective bargaining
1) The employer shall make known to the employee the reasonable standards (performance standards) that the -It cannot be stipulated that after hurdling probationary period, the employee does not become regular but merely a of thebe
-There must probationary
no unlawfuland
agreements employee is for in
discrimination
those arising a from
just
the cause.
dismissal (Univac Development
the interpretation or enforcement vs Soriano, G.R. 182072)
of company personnel
probationary employee must comply with to qualify as a regular employee; and project employee (Malicdem and Flores  vs Marulas Industrial Corporation, G.R. 204406) -If for authorized cause, service of written notice of termination to the affected
policies shall be disposed of by the Labor Arbiter by referring the same to the grievance
employee and to the
machinery andDepartment of Labor and
voluntary arbitration Employment
as may at least
be provided oneagreements. (As
in said month, amended by
2) The employer shall inform the employee of the applicable performance standard at the time of his/her engagement.  Probationary period in apprenticeable or learnable jobs before the intended
Section effectivity
9, Republic of termination,
Act No. 6715, Marchas21, provided
1989) in Art. 298 [283] of the
Under the Labor Code, apprenticeship shall not exceed 6 months. After the lapse of the period of apprenticeship, the Labor Code.
Failing in one or both, the employee, even if initially hired as a probationary employee, should be considered a regular employee cannot be made to undergo probationary employment. -Due proces
2) for third ground
Art. 275 [262] consists of making the reasonable standards expected
employee (Abbott Laboratories vs Alcaraz, G.R. 192571) Under the Labor Code, learnership shall not exceed 3 months and all learners who have been allowed or suffered to of the probationary employee
Art. 262. Jurisdiction during
over his probationary employment
other labor disputes. - The Voluntary known to himor
Arbitrator at panel of
RELIEFS AVAILABLE TO ILLEGALLY DISMISSED PROBATIONARY EMPLOYEES  work during the first two months shall be deemed regular employees, if training is terminated by the employer before the timeVoluntary
of his engagement
Arbitrators,asupon
such. agreement of the parties, shall also hear and decide all
-An employee who is allowed to work after a probationary period is considered a regular employee (Sampaguita Auto the end of the stipulated period through no fault of the learner Writtenother labor disputes
notice of terminationincluding
still required to be served in case
unfair labor practices andof the 3rd ground.
bargaining In
deadlocks.
Transport
1) Corporation
In case of vs NLRC,- the
valid termination G.Remployer
197384). has no obligation to pay the unexpired -Non-registration of the apprenticeship agreement will result in regularituy of employment of apprentice. Thus, the absence of written notice, the termination is illegal (Colegio del Santisimo vs Rojo,
-Absent of
portion a written employment
the probationary contract,
contract the of
in case presumption is that prior
valid termination the employee is regula
to the lapse of thefrom the onset of employment. approval of the DoLE of the learnership agreement is a condition sine qua non before an apprenticeship agreement can G.R.
-In 170388).
absence of mutual agreement, Voluntary Arbitrator cannot acquire jurisdiction (Maneja vs NLRC,
The best proofperiod
probationary of probationary employment
(International is the written
Catholic Migration contractvs
Commission itself.
NLRC,Consequently
G.R. 143252)if no written contract is be validly entered into. The act of filing the proposed apprenticeship program with DOLE is a preliminary step towards -Termination
G.R. 124013) after the period of probation has to be for just and authorized cause, as
presented
2) In case ofbyillegal
the employer,
dismissal the continuous
- actual appointment
reinstatement of the employee
and payment far beyond
of full backwages , the alleged probationary period its final approval and does not instantaneously give rise to an employer-employee apprentice relationship (Nitto the employee
-However, evenisif deemed
there is noto be a regular
mutual employee. 
agreement by the parties, if they operate on the theory that the
indicates
under regular
Article 294employment.
[279] of the Labor Code.  Enterprises vs NLRC, G.R. 114337) Voluntary Arbitrator has jurisdiction, then the case may prosper (University of Immaculate Conception
-Act of employer of repetitively rehiring a probationary
-Award of damages and attorney's fees may also be granted.  employee (Octaviano vs NLRC, G.R. 88636) vs NLRC and Axalan, G.R. 181146)
-Butcase
-In rehiring of the probationary
reinstatement employees
is not possible, of thepay
separation previous owner may
in substitution be rehired
thereof may beas probationary employees of the
new owner
awarded to (Espina vs CA,
an illegally G.R.164582)
dismissed probationary employee (Cebu Marine Beach Resort vs
-It is the
NLRC, management
G.R. 143252) who has the prerogative ti set the probationary period of the employment. It is the purpose, not
the length of period, that is material (Dela Cruz vs NLRC, G.R. 145417)
-General Rule: Probationary period should not exceed 6 months from the date the employee started working. 
-Exceptions: ISSUES OF JURISDICTION ON ILLEGAL DISMISSAL CASES:
a) When the employer and the employee agree on a shorter period
b) When the nature of the work to be performed by the employee requires a longer period -WHERE SHOULD ILLEGAL DISMISSAL CASES BE FILED?
c) When a longer period is required and established by company policy.

-Probationary period is reckoned from the date of appointment up to the same calendar date of the 6th month
following (Cebu Royal Plant vs Deputy Minister of Labor, G.R. L-58639)

With the Labor Arbiter, as stated under Art. 224 [217] of the Labor Code

-Exception to the rule when standards need not be specified:
1) Self-descriptive jobs- if the job for which the employee was hired is self-descriptive like
maid, cook, driver, or messenger, there is no need to require the employer to make
known to the employee at the time of his engagement, standards under which he may
qualify as a regular employee (Robinsons Galleria/Robinsons Supermarket Corp vs
Ranchez, G.R. 177937).
2) If the standards of the job are of common knowledge and by simple common sense,
one is expected to know them (Aberdeen Court vs Agustin, G.R. 149371).
-A probationary employee is regular from day one if the is apprised of the reasonable
standards for the work he was hired and trained for but not apprised for the different job
to which he was actually assigned.
Article. 217. Jurisdiction of the  Labor Arbiters and the Commission. - (a) Except as otherwise provided under this Code,
the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after
the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the
following cases involving all workers, whether agricultural or non-agricultural:
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours
of work and other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;
5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and
lockouts; and
6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising
from employer-employee relations, including those of persons in domestic or household service, involving an amount
exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.
(b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.
(c) Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from
the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring
the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. (As amended by
Section 9, Republic Act No. 6715, March 21, 1989)