Professional Documents
Culture Documents
QUAMTO Labor Law
QUAMTO Labor Law
LABOR LAW
AND SOCIAL
LEGISLATION
Questions Asked More
Than Once
(QuAMTO 2017)
*Bar questions are arranged per topic in accordance with the bar syllabus
released by the Supreme Court and were selected based on their occurrence
on past bar examinations from 1987 to 2016.
ACADEMICS COMMITTEE
CAMILLE ANGELICA B. GONZALES SECRETARY GENERAL
A: The salient features of the Protection to Labor provision The constitutionality of the two (2) laws is challenged
in court. As judge, how will you rule? (2009 Bar)
of the Constitution (Article XIII. Section 3} are as follows:
Extent of Protection - Full protection to labor;
A: The first innovative measure, on abolition of the
Coverage of Protection - Local and overseas,
security of tenure clause in the Labor Code, is
organized and unorganized;
unconstitutional as it goes against the entitlement of
Employment Policy - Full employment and equality workers to security of tenure under Section 3, Article XIII
of employment opportunities for all;
of the 1987 Constitution.
Guarantees:
Unionism and Method of Determination Conditions The second innovative measure, on a law allowing
of Employment - Right of all workers to self- contractualization in all areas needed in the employer’s
organization, collective bargaining and business operations, is legal. Article 106 of the Labor Code
negotiations. already allows the Secretary of Labor and Employment not
to make appropriate distinction between labor-only and
Concerted Activities - Right to engage in peaceful job contracting. This means that the Secretary may decide,
concerted activities, including the right to strike in through implementing regulation, not to prohibit labor-
accordance with law. only contacting, which is an arrangement where the
person supplying workers to an employer does not have
Working Conditions - Right to security of tenure, substantial capital or investment in the form of tools,
humane conditions of work and a living wage. equipment, machineries, work premises, among others,
and the workers recruited and place by such person are
Decision Making Processes - Right to participate in performing activities which are directly related to the
policy and decision, making processes affecting principal business of the employer.
their rights and benefits as way to provide by law.
Share In Fruits of Production - Recognition of right Hence, it would be legal for Congress to do away with the
prohibition on labor-only contracting and allow
of labor to its just share in fruits of production.
contractualization in all areas needed in the employer’s
business operations. Assuming, of course, that contractual
Q: What are the rights of an employer and an employee? workers are guaranteed their security of tenure.
(1996 Bar)
CONSTRUCTION IN FAVOR OF LABOR (2010, 2009,
A: An employer is a person who employs the services of 1993 BAR)
another and pays for their wages and salaries. As such, Art.
XIII, Sec. 3 of the Constitution provides and guarantees
Q: Clarito, an employee of Juan, was dismissed for
them with the following rights:
allegedly stealing Juan’s wristwatch. In the illegal
1. Reasonable return of investment
dismissal case instituted by Clarito, the Labor Arbiter,
2. Expansion
citing Article 4 of the Labor Code, ruled in favor of
3. Growth
Clarito upon finding Juan’s testimony doubtful. On
appeal, the NLRC reversed the Labor Arbiter holding
On the other hand, an employee is a person who works
that Article 4 applies only when the doubt involves
under the employ of another in exchange of a valuable
“implementation and interpretation” of the Labor
consideration in the form of wages, salaries, benefits, etc.
Code provisions. The NLRC explained that the doubt
Art. XIII, Sec. 3 of the Constitution similarly provides and
may not necessarily be resolved in favor of labor since
similarly guarantees them the following rights:
this case involves the application of the Rules on
Evidence, not the Labor Code. Is the NLRC correct?
1. Security of tenure
Reasons. (2009)
2. Receive a living wage
3. Humane conditions of work
4. Just share in the fruits of production A: The NLRC is not correct. It is a well settled doctrine that
5. Right to self-organization if doubts exist between the evidence presented by the
6. Conduct collective bargaining or negotiation with employer and the employee, the scale of justice must be
management tilted in favor of the latter. It is a time honored rule that in
7. Engage in peaceful concerted activities including strike controversies between laborer and master, doubts
8. Participate in policy and decision making process necessarily arising from the evidence, or in the
1
Labor Law and Social Legislation
implementation of the agreement and writing should be Prohibited activities (2015, 2006, 2005, 1991 Bar)
resolved in favor of the laborer.
Q: Rocket Corporation is a domestic corporation
registered with the SEC, with 30% of its authorized
SOCIAL JUSTICE (2003, 1994 BAR)
capital stock owned by foreigners and 70% of its
authorized capital stock owned by Filipinos. Is Rocket
Q: May social justice as a guiding principle in labor law Corporation allowed to engage in the recruitment and
be so used by the courts in sympathy with the working placement of workers, locally and overseas? Briefly
man if it collides with the equal protection clause of the state the basis for your answer. (2015 Bar)
Constitution? Explain. (2003 Bar)
A: No. Article 27 of the Labor Code mandates that
A: Yes. The State is bound under the Constitution to afford pertinently, for a Corporation to validly engage in
full protection to Labor; and when conflicting interests recruitment and placement of workers, locally and overseas,
collide and they are to be weighed on the scales of social at least seventy-five percent (75%) of its authorized and
justice, the law should accord more sympathy and voting capital stock must be owned and controlled by
compassion to the less privileged workingman. (Fuentes v. Filipino citizens. Since only 70% of its authorized capital
NLRC. 266 SCRA 24 119971) However, it should be borne in stock is owned by Filipinos, it consequently cannot validly
mind that social justice ceases to be an effective instrument engage in recruitment and placement of workers, locally
for the “equalization of the social and economic forces” by and overseas.
the State when it is used to shield wrongdoing. (Corazon
Jamer v. NLRC, 278 SCRA 632 [1997]) Q: Marino Palpak, Eddie Angeles and Jose Berdugo
advertised in the Manila Bulletin the following
information: “20 Teachers wanted for Egypt. Apply at
No. 123 Langit, Manila." Salvacion Inocente applied
Recruitment and Placement and was made to pay minimal fees to cover
administrative expenses and the cost of her passport
and visa. For one reason or another, Salvacion did not
ILLEGAL RECRUITMENT (2010 BAR)
get the job and filed a complaint with the POEA. Marino,
Q: A was approached for possible overseas deployment Eddie and Jose admitted having no license or authority
to Dubai by X, an interviewer of job applicants for Alpha but claimed that they are not covered by the Labor
Code since they are not engaged in the recruitment and
Personnel Services, Inc., an overseas recruitment
agency. X required A to submit certain documents placement for profit and, at any rate, only one
(passport, NBI clearance, medical certificate) and to prospective worker was involved. May Marino, Eddie
pay P25,000 as processing fee. Upon payment of the and Jose be prosecuted? If so, for what specific
said amount to the agency cashier, A was advised to offense/s? (1991 Bar)
wait for his visa. After five months, A visited the office A: Marino, Eddie and Jose can be prosecuted. Recruitment
of Alpha Personnel Services, Inc. during which X told and placement by persons without a license or authority
him that he could no longer be deployed for constitute illegal activities. Marino, Eddie and Jose were
employment abroad. A was informed by the Philippine engaged in recruitment and placement when they
Overseas Employment Administration (POEA) that advertised that 20 teachers were wanted to Egypt.
while Alpha Personnel Services, Inc. was a licensed Advertising for employment is one of the acts considered
agency, X was not registered as its employee, contrary as recruitment and placement in the Labor Code.
to POEA Rules and Regulations. Under POEA Rules and
Regulations, the obligation to register personnel with That they were not engaged in recruitment and placement
the POEA belongs to the officers of a recruitment agency. for profit does not mean that the conditions for a person to
(2010) engage in recruitment and placement found in the Labor
Code are not applicable to them. The Code applies to any
a. May X be held criminally liable for illegal recruitment or placement, whether for profit or not.
recruitment? Explain.
The fact that only one prospective worker was involved
A: No. X performed his work with the knowledge that he does not mean that they were not engaged in recruitment
works for a licensed recruitment agency. He is in no position or placement. They were. The reference in the Code that
to know that the officers of said recruitment agency failed any person who offers employment to “two or more
to register him as its personnel (People v. Chowdur, G.R. No. persons” as being engaged in recruitment and placement
129577-80, February 15, 2000). The fault not being does not mean that there must be at least two persons
attributable to him, he may be considered to have apparent involved. This reference is merely evidentiary.
authority to represent Alpha in recruitment for overseas
employment. They may be prosecuted for these specific offenses: They
already charged fees even if they have not yet obtained
b. May the officers having control, management or employment for the applicant
direction of Alpha Personnel Services, Inc. be held
criminally liable for illegal recruitment? Explain. Q: Wonder Travel and Tours Agency (WTTA) is a well-
known travel agency and an authorized sales agent of
A: Yes. Alpha, being a licensed recruitment agency, still has the Philippine Air Lines. Since majority of its
obligations to A for processing his papers for overseas passengers are overseas workers, WTTA applied for a
employment. Under Section 6(m) of R.A. 8042, failure to license for recruitment and placement activities. It
reimburse expenses incurred by the worker in connection stated in its application that its purpose is not for profit
with his documentation and processing for purposes of but to help Filipinos find employment abroad. Should
deployment, in cases where the deployment does not the application be approved? (2006 Bar)
actually take place without the worker’s fault, amounts to
illegal recruitment. A: No. The application should be disapproved. The law
clearly states that travel agencies and sales agencies of
3
Labor Law and Social Legislation
country to work as Vice-President of a local gives them the status of regular employees. What
telecommunications company. You are with the determines regularity is not the employment contract but
Department of Labor and Employment (DOLE). What the nature of the job (A.M. Oreta and Co. Inc. v. NLRC, 176
permit, if any, can the DOLE issue so that AB can SCRA 218 [1989]).
assume as Vice-President in the telecommunications
company? Discuss fully. (2007 Bar) Q: Ana Cruz has a low IQ. She has to be told at least three
times before she understands her daily work
A: The Labor Code provides that “any alien seeking assignment. However, her work output is at least equal
admission to the Philippine for employment purposes and to the output of the least efficient worker in her work
any domestic or foreign employer who desires to engage section. Is Ms. Cruz a handicapped worker? Explain.
an alien for employment in the Philippines shall obtain an (2000 Bar)
employment permit from the Department of Labor.”
A: No, low IQ or low efficiency does not make the worker
“handicapped” in the contemplation of law. Handicap
The employment permit may be issued to a nonresident means such physical or mental infirmity that impairs
alien or to the applicant employer after a determination of capacity to work. The deficiency may also be due to age or
the non-availability of a person in the Philippines who is injury. (Art. 78, Labor Code).
competent, able and willing at the time of application to
perform the services for which the alien is desired. Equal opportunity (2012, 2006, 1998 Bar)
Thus, AB (or telecommunication company) should be
Q: A lady worker was born with a physical deformity,
issued the above-mentioned alien employment permit so
specifically, hard of hearing, speech impaired and
that AB can assume as Vice President of the
color blind. However, these deficiencies do not impair
Telecommunication Company.
her working ability.
Q: Phil-Norksgard Company. Inc., a domestic corpora- Can the employer classify the lady worker as a handi-
tion engaged in the optics business, imported from capped worker so that her daily wage will only be
Sweden highly sophisticated and sensitive seventy-five percent (75%) of the applicable daily
instruments for its laboratory. To Install the minimum wage? (1998 Bar)
instruments and operate them, the company intends to
employ Boija Anders, a Swedish technician sojourning A. No, the employer cannot classify the lady worker as a
as a tourist in the Philippines. handicapped worker because according to the facts in the
question, her deficiencies do not impair her working ability.
As lawyer of the company, what measures will you If her earning capacity is therefore not also impaired, then
take to ensure the legitimate employment of Boija she cannot be considered a handicapped worker.
Anders and at the same time protect Philippine labor?
Discuss fully. (1995 Bar) Because of the above fact, the employer shall not pay her
less than the applicable daily minimum wage. (Article 78 of
A: To ensure the legitimate employment of Borja Anders, the Labor Code)
a non-resident alien, I will apply at the Department of
Labor and Employment for the issuance of an employment Q: For humanitarian reasons, a bank hired several
permit claiming that there is no one in the Philippines who handicapped workers to count and sort out currencies.
can do the work that Anders is being asked to do. Their employment contract was for six (6) months. The
bank terminated their employment on the ground that
At the same time, to protect Philippine labor, I will see to it their contract has expired prompting them to file with
that Anders will have an understudy who will learn by the Labor Arbiter a complaint for illegal dismissal. Will
working with Anders, how to install and operate the highly their action prosper? (2012 Bar)
sophisticated and sensitive instruments from Sweden.
A: No. Art. 80 provides that in cases of employing
To protect Philippine Labor, the Labor Code provides that handicapped workers, an employment agreement must be
the alien employee shall not transfer to another job or contracted. Art. 80 further provides that such employment
change his employer without prior approval of the agreement shall contain the duration of the employment
Secretary of Labor. period. In the case at bar, the action will not prosper for the
bank cannot be held liable for illegal dismissal for the
TRAINING AND EMPLOYMENT OF SPECIAL WORKERS handicapped employees themselves have agreed that their
term of employment will only be limited to 6 months.
Disabled workers (2006, 2000 Bar)
NOTE: The contract signed by the workers is akin to a
Q: For humanitarian reasons, a bank hired several probationary employment, during which the bank
handicapped workers to count and sort out currencies. determined the employees’ fitness for the job. If the bank
Their employment contract was for six (6) months. The renewed the contract after the lapse of the six-month
bank terminated their employment on the ground that probationary period, the employees will then become
their contract has expired prompting them to file with regular employees since the task of counting and sorting
the Labor Arbiter a complaint for illegal dismissal. Will bills is necessary and desirable to the business of the bank.
their action prosper? (2006 Bar) (Bernardo et. al. v. NLRC and Far East Bank and Trust Co. G.R.
No. 122917, July 12, 1999).
A: Yes, their action will prosper. They are doing necessary
or desirable jobs and are qualified for the job, and therefore
they should be treated like other qualified able-bodied
employees (Bernardo v. NLRC and Far East Bank, 310 SCRA Labor Standards
186 [1999]). They cannot be terminated simply because of
the expiration of the contract. The nature of their work
5
Labor Law and Social Legislation
now can only expect a maximum of four (4) hours overtime Holiday pay, 13th month pay (2012, 2005, 2004, 2002,
work. Besides, Art. 87 of the Labor Code does not guarantee 1998, 1994, 1987 Bar)
Carding a certain number of hours of overtime work. In
Manila Jockey Employees’ Union v. Manila Jockey Club (G.R. Q: Dennis was a taxi driver who was being paid on the
No. 167760, March 7, 2007), the Supreme Court held that "boundary" system basis. He worked tirelessly for
the basis of overtime claim is an employee’s having been Cabrera Transport Inc. for fourteen (14) years until he
“permitted to work”. Otherwise, as in this case, such is not was eligible for retirement. He was entitled to
demandable. retirement benefits. During the entire duration of his
service, Dennis was not given his 13th month pay or his
Night shift differential (2002 Bar) service incentive leave pay.
Q: As a tireman in a gasoline station, open twenty four a. Is Dennis entitled to 13th month pay and service
(24) hours a day with only five (5) employees, Goma leave incentive pay? Explain.
worked from 10:00 P.M. until 7:00 A.M. of the following
day. He claims he is entitled to night shift differential. Is A: No. A taxi driver paid under the “boundary system” is
he correct? Explain briefly. (2002 Bar) not entitled to a 13th month pay and a SIL pay. Hence, his
retirement pay should be computed solely on the basis of
A. Yes. Under Art. 86 of the Labor Code, night shift his salary. Specifically, Sec. 3(e) of the Rules and
differential shall be paid to every employee for work Regulations Implementing P.D. 851 excludes from the
performed between 10:00 o’clock in the evening to six obligation of 13th Month Pay “Employers of those who are
o’clock in the morning. Therefore, Goma is entitled to night paid on xxx boundary” basis. On the other hand, Sec. 1(d),
shift differential for work performed from 10:00 pm until Rule V. Book III of the Omnibus Rules provides that those
6:00 am of the day following, but not from 6:00 am to 7:00 “employees whose performance is unsupervised by the
am of the same day. employer” are not entitled to Service Incentive Leave. A
taxi driver paid under the Boundary System is an
Alternative answer: “unsupervised” employee.
No. The Omnibus Rules Implementing the Labor Code (In b. Since he was not given his 13th month pay and
Book III, Rule II dealing with night shift differential) service incentive leave pay, should Dennis be paid
provides that its provisions on night shift differential shall upon retirement, in addition to the salary
NOT apply to employees of “retail and service equivalent to fifteen (15) days for every year of
establishments regularly employing not more than five (5) service, the additional 2.5 days representing one-
workers”. Because of this provision, Goma is not entitled to twelfth (1/12) of the 13th month pay as well as the
night shift differential because the gasoline station where five (5) days representing the service incentive
he works has only five employees. leave for a total of 22.5 days? Explain. (2012 Bar)
Rest periods (1998, 1987 Bar) A: No. Since he is not entitled to 13th month pay and
Service Incentive Leave, his retirement pay should be
Q: A Ladies Dormitory run or managed by a charitable computed solely on the basis of his salary. (R&E Transport
non-profit organization claims that it is exempt from v. Latag, G.R. No. 155214, February 13, 2004)
the coverage of the Weekly Rest Period provision of the
Labor Code. Is the claim valid? (1998 Bar)
Q: During the open forum following your lecture before
members of various unions affiliated with a labor
A: No. The claim is not valid. The provisions on weekly rest federation, you were asked the following question:
periods in the Labor Code cover every employer, whether
operating for profit or not. (Article 91 of the Labor Code) Araw ng Kagitingan and Good Friday are among
Q: Lawyer Antonio Martin recently formed a law the 10 paid regular holidays under Article 94 of
partnership with five other lawyer-friends of his. They the Labor Code. How much will an employee
hired two office secretaries, an accounting clerk- receive when both holidays fall on the same
cashier, one bookkeeper, and two messengers. You are day? (2005 Bar)
among three associate attorneys. The workweek is
Monday to Friday. There is no vacation leave but sick A: The employee will receive 200% of his regular daily wage
leave is 15 days for every year of continuous and when both regular holidays fall on the same day and he does
satisfactory service. not work. The law provides that he shall receive his regular
daily wage for each regular holiday. The employee will
Managing partner Martin is preparing a set of person- receive 100% for Araw ng Kagitingan and 100% for Good
nel policies in terms and conditions of employment for Friday, If he works on that day, he is entitled to 400% of his
the staff and has asked you to give him a brief memo on regular daily wage; otherwise, there will be diminution of
the questions listed below. Should the law firm benefits [Asian Transmission Corp. v. Court of Appeals, 425
schedule a rest day for the employees, including you? SCRA 478 (2004)],
(1987 Bar)
Q: TRX, a local shipping firm, maintains a fleet of
motorized boats plying the island barangays of AP, a
A: There is no need under the Labor Code to schedule a
coastal town. At day's end the boat operators/crew
restday. The Code (in Art. 91) requires an employer to
members turn over to the boat owner their cash
provide each of his employees a weekly rest day after
collections from cargo fees and passenger fares, less the
every six consecutive normal work days. Here, the work
expenses for diesel fuel, food, landing fees and spare
week is such that it is for five days. The Saturdays and
parts.
Sundays when the employees are not required to work
more than satisfy the required weekly rest day. Fifty percent (50%) of the monthly income or earnings
derived from the operations of the boats are given to
7
Labor Law and Social Legislation
Service Incentive Leave (2012, 2010, 1987 Bar) Q: A, single, has been an active member of the Social
Security System for the past 20 months. She became
pregnant out of wedlock and on her 7th month of
Q: Dennis was a taxi driver who was being paid on the
pregnancy, she was informed that she would have to
"boundary" system basis. He worked tirelessly for
deliver the baby through caesarean section because of
Cabrera Transport Inc. for fourteen (14) years until he
some complications. Can A claim maternity benefits? If
was eligible for retirement. He was entitled to
yes, how many days can she go on maternity leave? If
retirement benefits. During the entire duration of his
not, why is she not entitled? (2010 Bar)
service, Dennis was not given his 13th month pay or his
service incentive leave pay.
A: Yes. The SSS Law does not discriminate based on the civil
status of a female member-employee. As long as said female
a. Is Dennis entitled to 13th month pay and service employee has paid at least three (3) monthly contributions
leave incentive pay? Explain. in the twelve-month period immediately preceding the
semester of her childbirth, she can avail of the maternity
A: No. A taxi driver paid under the “boundary system” is not benefits under the law.
entitled to a 13th month pay and a SIL pay. Hence, his
retirement pay should be computed solely on the basis of Since A gave birth through C-section, she is entitled to one
his salary. Specifically, Sec. 3(e) of the Rules and hundred percent (100%) of her average salary credit for
Regulations Implementing P.D. 851 excludes from the seventy-eight (78) days, provided she notifies her employer
obligation of 13th Month Pay “Employers of those who are of her pregnancy and the probable date of her childbirth,
paid on xxx boundary” basis. On the other hand, Sec. 1(d), among others (Section 14-A, Rep. Act No. 8282).
Rule V. Book III of the Omnibus Rules provides that those
“employees whose performance is unsupervised by the The same maternity benefits are ensured by Sec. 22 (b)(2)
employer” are not entitled to Service Incentive Leave. A taxi of the Magna Carta of Women (Rep. Act No. 9710).
driver paid under the Boundary System is an “unsupervised”
employee. Q: AB, single and living-in with CD (a married man), is
pregnant with her fifth child. She applied for maternity
b. Since he was not given his 13th month pay and leave but her employer refused the application because
service incentive leave pay, should Dennis be paid she is not married. Who is right? Decide (2007 Bar)
upon retirement, in addition to the salary
equivalent to fifteen (15) days for every year of A: AB is right. The Social Security Law, which administers
service, the additional 2.5 days representing one- the Maternity Benefit Program does not require that the
twelfth (1/12) of the 13th month pay as well as the relationship between the father and the mother of the child
five (5) days representing the service incentive be legitimate. The law is compensating the female worker
leave for a total of 22.5 days? Explain. (2012 Bar ) because of her maternal function and resultant loss of
compensation. The law is morality free.
A: No. Since he is not entitled to 13th month pay and Service
Incentive Leave, his retirement pay should be computed Q: Mans Weto had been an employee of Nopolt
solely on the basis of his salary. (R&E Transport v. Latag, G.R. Assurance Company for the last ten (10) years. His wife
No. 155214, February 13, 2004) of six (6) years died last year. They had four (4)
children. He then fell in love with Jovy, his co-employee
Q: A driver for a bus company, sued his employer for and they got married.
non-payment of commutable service incentive leave
credits upon his resignation after five years of In October this year, Weto's new wife is expected to
employment. The bus company argued that A was not give birth to her first child. He has accordingly filed his
entitled to service incentive leave since he was application for paternity leave, conformably with the
considered a field personnel and was paid on provisions of the Paternity Leave Law which took
commission basis and that, in any event, his claim had effect in 1996. The HRD manager of the assurance firm
prescribed. If you were the Labor Arbiter, how would denied his application, on the ground that Weto had
you rule? Explain. (2010 Bar) already used up his entitlement under that law. Weto
argued that he has a new wife who will be giving birth
A: I will grant the prayer of A. Payment on commission basis for the first time, therefore, his entitlement to
alone does not prove that A is a field personnel. There must paternity leave benefits would begin to run anew. Is
be proof that A is left to perform his work unsupervised by Jovy entitled to maternity leave benefits? (2005 Bar)
his employer. Otherwise, he is not a field personnel, thus
entitled to commutable service incentive leave (SIL) credits A: Yes, if Jovy, as a female employee, has paid at least three
[Auto Bus v. Bautista, 458 SCRA 578 [2005]). (3) monthly contributions in the twelve-month period
immediately preceding the semester of her childbirth (Sec,
His action has not yet prescribed. In Auto Bus v. Bautista 14-A, R.A. 1161, as amended); otherwise; she is not entitled
(supra.), the Supreme Court recognized that SIL is such a to the benefit.
unique labor standard benefit, because it is commutable.
An employee may claim his accrued SIL throughout the Paternity Leave (2005, 2002 Bar)
years of his service with the company upon his resignation,
Q: Mans Weto had been an employee of Nopolt
retirement, or termination. Therefore, when A resigned
Assurance Company for the last ten (10) years. His wife
after five years, his right of action to claim ALL of his SIL
of six (6) years died last year. They had four (4)
benefits accrued at the time when the employer refused to
children. He then fell in love with Jovy, his co-employee
pay him his rightful SIL benefits. (Art. 291, Labor Code).
and they got married.
9
Labor Law and Social Legislation
Stipulation against marriage (2012, 1998, 1995, 1991 Q: As a condition for her employment. Josephine signed
Bar) an agreement with her employer that she will not get
married, otherwise, she will be considered resigned or
Q: Fil-Aire Aviation Company (FIL-AIRE) is a new separated from the service.
airline company recruiting flight attendants for its
domestic flights. It requires that the applicant be Josephine got married. She asked Owen, the personnel
single, not more than 24 years old attractive, and manager, if the company can reconsider the agreement.
familiar with three (3) major Visayan dialects, viz: He told Josephine he can do something about it,
Ilongo, Cebuano and Waray. Lourdes. 23 years old was insinuating some sexual favors. She complained to
accepted as she possessed all the qualifications. After higher authorities but to no avail. She hires you as her
passing the probationary period. Lourdes disclosed counsel. What action or actions will you take? Explain.
that she got married when she was 18 years old but the (2006 Bar)
marriage was already in the process of being annulled
on the ground that her husband was afflicted with a A: As counsel for Josephine, I will file a complaint for work-
sexually transmissible disease at the time of the related sexual harassment which, as in the case at bar,
celebration of their marriage. As a result of this occurs when a person who has authority, influence or
revelation, Lourdes was not hired as a regular flight moral ascendancy over another demands, requests or
attendant. Consequently, she filed a complaint against otherwise requires any sexual favor from the latter as a
FIL-AIRE alleging that the pre-employment condition for, inter alia, the continued employment of said
qualifications violate relevant provisions of the Labor individual (Sec. 3, RA 7877). I will likewise file a complaint
Code and are against public policy. Is the contention of for illegal dismissal citing Art. 136 of the Labor Code which
Lourdes tenable? Discuss fully. (1995 Bar) provides that it is unlawful for an employer to require as a
condition of continued employment or continuation of
A: The contention of Lourdes is tenable. When she was not employment that a woman employee shall not get married,
hired as a regular flight attendant by FIL-AIRE because she or to stipulate expressly or tacitly that upon getting
disclosed that she got married when she was 18 years old, married a woman employee shall be deemed resigned or
the airline company violated the provision of the Labor separated, or to actually dismiss, discharge, discriminate or
Code which states: otherwise prejudice a woman employee merely by reason
of her marriage.
“It shall be unlawful for an employer to require as a
condition of employment or continuation of employment Q: Pedrito Masculado, a college graduate from the
that a woman employee shall not get married, or to province, tried his luck in the city and landed a job as
stipulate expressly or tacitly that upon getting married a utility/maintenance man at the warehouse of a big
woman employee shall be deemed resigned or separated, shopping mall. After working as a casual employee for
or to actually dismiss, discharge, discriminate or otherwise six months, he signed a contract for probationary
prejudice a woman employee merely by reason of her mar- employment for six months. Being well-built and
riage." physically attractive, his supervisor, Mr. Hercules
Barak, took special interest to befriend him. When his
Q: Mam-manu Aviation Company (Mam-manu) is a new probationary period was about to expire, he was
airline company recruiting flight attendants for its surprised when one afternoon after working hours, Mr.
domestic flights. It requires that the applicant be Barak followed him to the men's comfort room. After
single, not more than 24 years old, attractive, and seeing that no one else was around, Mr. Barak placed
familiar with three (3) dialects, viz: llonggo, Cebuano his arm over Pedrito's shoulder' and softly said: "You
and Kapampangan. lngga, 23 years old, was accepted have great potential to become regular employee and I
as she possesses all the qualifications. After passing think I can give you a favorable recommendation. Can
the probationary period, lngga disclosed that she got you come over to my condo unit on Saturday evening so
married when she was 18 years old but the marriage we can have a little drink? I'm alone, and I'm sure you
was already in the process of being annulled on the want to stay longer with the company." Is Mr. Barak
ground that her husband was afflicted with a sexually liable for sexual harassment committed in a work-
transmissible disease at the time of the celebration of related or employment environment? (2004 Bar)
their marriage. As a result of this revelation, lngga was
not hired as a regular flight attendant. Consequently, A: Yes, the elements of sexual harassment are all present:
11
Labor Law and Social Legislation
Q: Can an individual, the sole proprietor of a business A: Yes, he should be prohibited from being hired and
enterprise, be said to have violated the Anti-Sexual from performing the duties of a miner because such
Harassment Act of 1995 if he clearly discriminates constitutes hazardous work under D.O. No. 04 Series of
against women in the adoption of policy standards for 1999. Art. 139 (c) of the Labor Code expressly prohibits
employment and promotions in the enterprise? the employment of persons below 18 years of age in an
Explain. (2003 Bar) undertaking which is hazardous or deleterious in
nature as determined by the Secretary of Labor .
A: When an employer discriminates against women in the
adoption of policy standards for employment and b. An 11-year old boy who is an accomplished singer
promotion in his enterprise, he is not guilty of sexual and performer in different parts of the country.
harassment. Instead, the employer is guilty of
A: No, he should not be prohibited from being hired and
discrimination against women employees which is
from performing as a singer. Under Art. VIII Sec. 12 par.
declared to be unlawful by the Labor Code.
2 of RA 7610 as amended by RA 7658, this constitutes
an exception to the general prohibition against the
For an employer to commit sexual harassment, he - as a
employment of children below 15 years of age,
person of authority, influence or moral ascendancy - should
provided that the following requirements are strictly
have demanded, requested or otherwise required a sexual
complied with: (a) the employer shall ensure the
favor from his employee whether the demand, request or
protection, health, safety and morals of the child; (b)
requirement for submission is accepted by the object of
the employer shall institute measures to prevent the
said act. In the question, no such act was committed by the
child’s exploitation or discrimination taking into
sole proprietor.
account the system and level of remuneration, and the
duration and arrangement of working time; and (c) the
Q: Atty. Renan, a CPA-lawyer and Managing Partner of
employer shall formulate and implement, subject to the
an accounting firm, conducted the orientation seminar
approval and supervision of competent authorities, a
for newly-hired employees of the firm, among them,
continuing program for training and skill acquisition of
Miss Maganda. After the seminar, Renan requested
the child. Moreover, the child must be directly under
Maganda to stay, purportedly to discuss some work
the sole responsibility of his parents or guardian and
assignment. Left alone in the training room, Renan
his employment should not in any way interfere with
asked Maganda to go out with him for dinner and
his schooling.
ballroom dancing. Thereafter, he persuaded her to
accompany him to the mountain highway in Antipolo c. A 15-year old girl working as a library assistant in
for sight-seeing. During all these, Renan told Maganda a girls’ high school.
that most, if not all, of the lady supervisors in the firm
are where they are now, in very productive and A: No, she should not be prohibited from working as a
lucrative posts, because of his favorable endorsement. library assistant because the prohibition in the Labor
Did Renan commit acts of sexual harassment in a work- Code against employment of persons below 18 years
related or employment environment? Reasons. (2009 of age merely pertains to employment in an
Bar) undertaking which is hazardous or deleterious in
nature as identified in the guidelines issued by the
A. Yes. Atty. Renan is guilty of sexual harassment. This DOLE Secretary. Working as a library assistant is not
conclusion is predicated upon the following consideration: one of undertakings identified to be hazardous under
D.O. No. 04 Series of 1999.
a. Atty. Renan has authority, influence or moral
ascendancy over Miss Maganda; d. A 16-year old girl working as model promoting
b. While the law calls for a demand, request or alcoholic beverages.
requirement of a sexual favor, it is not necessary that
the demand, request or requirement of a sexual favor A: Yes, she should be prohibited from working as a
be articulated in a categorical oral or written statement. model promoting alcoholic beverages. RA 7610
It may be discerned, with equal certitude from the acts categorically prohibits the employment of child
of the offender; (Domingo vs. Rayala, 546 SCRA 90 models in all commercials or advertisements
[2008]); promoting alcoholic beverages and intoxicating drinks,
c. The acts of Atty. Renan towards Miss Maganda resound among other things.
with deafening clarity the unspoken request for a
sexual favor, regardless of whether it is accepted or not e. A 17 -year old boy working as dealer in a casino
by Miss Maganda;
d. In sexual harassment, it is not essential that the A: Yes, he should be prohibited from working as a
demand, request or requirement be made as a dealer in a casino, because Art. 140 of the Labor Code
condition for continued employment or promotion to a prohibits the employment of persons below 18 years
Q: You were asked by 3 paint manufacturing company Monday, Wednesday, Friday - Drive the family car to
regarding the possible employment as a mixer of a bring and fetch the children to and from school.
person, aged seventeen (17), who shall be directly
under the care of the section supervisor. What advice Tuesday, Thursday, Saturday - Drive the family van to
would you give? Explain briefly. (2002 Bar) fetch merchandise from suppliers and deliver the same
to a boutique in a mall owned by the family.
A: I will advise the paint manufacturing company that it
cannot hire a person who is aged seventeen (17). Art. 139 Is the driver a househelper? (2012, 1998 Bar)
(c) of the Labor Code provides that a person below
eighteen (18) years of age shall not be allowed to work in A: The driver is a househelper. A person is a househelper or
an undertaking which is hazardous or deleterious in nature is engaged in domestic or household service if he/she
as determined by the Secretary of Labor. Paint renders services in the employer's home which are usually
manufacturing has been classified by the Secretary of Labor necessary or desirable for the maintenance and enjoyment
as a hazardous work. thereof and includes ministering to the personal comfort
and convenience of the members of the employer's
KASAMBAHAY (2015, 2014, 2012, 2009, 2007, 2000, household including the services of family drivers.
1998 BAR)
A family driver who drives the family van to fetch
Q: Soledad, a widowed school teacher, takes under her merchandise from suppliers and delivers the same to a
wing one of her students, Kiko, 13 years old, who was boutique in a mall owned by the family for whom he works
abandoned by his parents and has to do odd jobs in should be paid the minimum daily wage of a driver in a
order to study. She allows Kiko to live in her house, commercial establishment.
provides him with clean clothes, food, and a daily
allowance of 200 pesos. In exchange, Kiko does routine The Labor Code (in Article 143) provides that no
housework, consisting of cleaning the house and doing househelper shall be assigned to work in a commercial,
errands for Soledad. One day, a representative of the industrial or agricultural enterprise at a wage or salary rate
DOLE and the DSWD came to Soledad's house and lower than that provided by law for agricultural or non-
charged her with violating the law that prohibits work agricultural workers.
by minors. Soledad objects and offers as a defense that
she was not requiring Kiko to work as the chores were HOMEWORKERS (2009, 2000, 1988 BAR)
not hazardous. Further, she did not give him chores
regularly but only intermittently as the need may arise. Q. Distinguish briefly, but clearly, a “househelper” from
Is Soledad's defense meritorious? (2015 Bar) a “homeworker.” (2009 Bar)
A: Soledad’s defense is meritorious. Sec. 4(d) of the A. Art. 141 - Domestic Helper - one who performs services
Kasambahay Law (RA 10361) provides that the term in the employer’s house which is usually necessary or
“Domestic Worker” shall not include children who are desirable for the maintenance and enjoyment thereof and
under foster family arrangement, and are provided access includes ministering to the personal comfort and
to education and given an allowance incidental to education, convenience of the members of the employer’s household,
i.e. “baon”, transportation, school projects and school including the services of a family driver.
activities. Art. 153 - Homeworker -is an industrial worker who works
in his/her home processing raw materials into finished
Q: Linda was employed by Sectarian University (SU) to products for an employer. It is a decentralized form of
cook for the members of a religious order who teach production with very limited supervision or regulation of
and live inside the campus. While performing her methods of work.
assigned task, Linda accidentally burned herself.
Because of the extent of her injuries, she went on Q: Nova Banking Corporation has a resthouse and
medical leave. Meanwhile, SU engaged a replacement recreational facility in the highlands of Tagaytay City
cook. Linda filed a complaint for illegal dismissal, but for the use of its top executives and corporate clients.
her employer SU contended that Linda was not a The resthouse staff includes a caretaker, two cooks
regular employee but a domestic househelp. Decide. and laundrywoman. All of them are reported to the
(2014 Bar) Social Security System as domestic or household
employees of the resthouse and recreational facility
A: The employer's argument that Linda was not a regular and not of the bank.
employee has no merit. The definition of domestic servant
or househelper contemplates one who is employed in the a. Can the bank legally consider the caretaker, cooks
employer’s home to minister exclusively to the personal and laundrywoman as domestic employees of the
comfort and enjoyment of the employer’s family. The resthouse and not of the bank?
Supreme Court already held that the mere fact that the
househelper is working in relation to or in connection with A: No, they are not domestic employees. They are bank
its business warrants the conclusion that such househelper employees because the resthouse and recreational facility
or domestic servant is and should be considered as a are business facilities as they are for use of the top
regular employee. (Apex Mining Co., Inc. v. NLRC, G.R. No. executives and clients of the bank. [Art. 141, Labor Code;
Apex Mining Co., Inc. v. NLRC, 196 SCRA 251 (1991)-, Traders
13
Labor Law and Social Legislation
Royal Bank v. NLRC, G.R. No. 127864, December 22, 19991.] employee of Perfect Triangle. Ail that he could claim is he
worked within the premises of Perfect Triangle. Pandoy
b. Mrs. Josie Juan is the confidential secretary of the was NOT engaged as an employee by Perfect Triangle. He
Chairman of the Board of the bank. She is presently was NOT paid wages by Perfect Triangle. Perfect Triangle
on maternity leave. In an arrangement where the does NOT have the power to dismiss him although Perfect
Chairman of the Board can still have access to her Triangle may not continue to allow him to work within its
services, the bank allows her to work in her premises. And most important of all, Pandoy was NOT
residence during her leave. For this purpose, the under the control of Perfect Triangle as regards the work
bank installed a fax machine in her residence, and he performs for customers.
gave her a cellphone and a beeper. Is Mrs. Juan a
homeworker under the law? Explain. (2000 Bar) Q: Malyn Vartan is a well-known radio-N talk show host.
She signed a contract with XYZ Entertainment Network
A: No, she is actually an office worker. She is not an to host a one-hour daily talk show where she interviews
industrial homeworker who accepts work to be fabricated various celebrities on topical subjects that she herself
or processed at home for a contractor, which work, when selects. She was paid a monthly remuneration of
finished, will be returned to or repurchased by said P300.000.00. The program had been airing for almost
contractor. [Art. 155, Labor Code) two years when sponsors' advertising revenues
dwindled, constraining the network to cancel the show
upon the expiration of its latest contract with Ms.
Post – Employment Vartan. The talk-show host protested the
discontinuance of her monthly talent fee, claiming that
it was tantamount to her illegal dismissal from the
network since she has already attained the status of a
EMPLOYER-EMPLOYEE RELATIONSHIP regular employee.
Tests to determine employer-employee relationship a. As the network's legal counsel, how would you
(2016, 2014, 2006, 2005, 2002, 2001, 1997, 1996, 1993, justify its decision to cancel Ms. Vartan's program
1988, 1987 Bar) which in effect terminated her services in the
process?
Q: Don Luis, a widower, lived alone in a house with a
large garden. One day, he noticed that the plants in his A: As the network's legal counsel, I will argue that no
garden needed trimming. He remembered that Lando, employer employee relationship exists between the
a 17-year old out-of-school youth, had contacted him in network and Ms. Vartan. Reference has to be made to the
church the other day looking for work. He contacted terms and conditions provided under the contract and the
Lando who immediately attended to Don Luis’s garden parties shall be governed by the provisions of the New Civil
and finished the job in three days. Is there an employer- Code. In the case of Jay Sonza v. ABS-CBN, 431 SCRA583
employee relationship between Don Luis and Lando? (2004) it was held that a TN and radio talent is not an
(2014 Bar) employee of the network company. Similarly in this case,
Ms. Vartan cannot be considered an employee of the
A: Yes. All the elements of employer-employee relationship network. Under the control test, the network had no control
are present, viz: on the manner and means through which Ms. Vartan will
perform her work. She herself selects the topical subjects in
1. The selection and engagement of the employee; her interviews. She is also paid an extraordinary huge
2. The power of dismissal; amount of P300, 000 for her to be considered a mere
3. The payment of wages; and employee.
4. The power to control the employee's conduct.
b. As counsel for the-talk-show host, how would you
There was also no showing that Lando has his own tools, or argue your case? (2005 Bar)
equipment so as to qualify him as an independent
contractor. A: As counsel for Ms, Vartan, I will argue that an employer-
employee relationship exists, and that she is a regular
Q: Pandoy, an electronics technician, worked within employee of the Network because of the nature of her work
the premises of Perfect Triangle, an auto accessory in relation to the nature of the business of the Network. Her
shop. He filed a complaint for illegal dismissal, work is usually necessary or desirable in the usual, trade or
overtime pay and other benefits against Perfect business of the employer (Art. 280, Labor Code). I will
Triangle, which refused to pay his claims on the invoke the four-fold test of employer-employee
ground that Pandoy was not its employee but was an relationship, i.e. (1) selection and engagement of employee:
independent contractor. It was common practice for (2) payment of wages; (3) power to dismiss; and (4) power
shops like Perfect Triangle to collect the service fees of control.
from customers and pay the same to the independent
contractors at the end of each week. The auto shop Q: Gregorio was hired as an insurance underwriter by
explained that Pandoy was like a partner who worked the Guaranteed Insurance Corporation (Guaranteed).
within its premises, using parts provided by the shop, He does not receive any salary but solely relies on
but otherwise Pandoy was free to render service in the commissions earned for every insurance policy
other auto shops. On the other hand, Pandoy insisted approved by the company. He hires and pays his own
that he still was entitled to the benefits because he was secretary but is provided free office space in the office
loyal to Perfect Triangle, it being a fact that he did not of the company. He is, however, required to meet a
perform work for anyone else. Is Pandoy correct? monthly quota of twenty (20) insurance policies,
Explain briefly. (2002 Bar) otherwise, he may be terminated. He was made to agree
to a Code of Conduct for underwriters and is supervised
A: Pandoy is not correct. He is not an employee because by a Unit Manager.
he does not meet the fourfold test for him to be an
A: No, Gregorio is not an employee of Guaranteed. Control Q: Matibay Shoe and Repair Store, as added service to
is the most important element of employer-employee its customers, devoted a portion of its store to a shoe
relationship, which refers to the means and methods by shine stand. The shoe shine boys were tested for their
which the result is to be accomplished. (Avelino Lambo and skill before being allowed to work and given ID cards.
Vicente Belocura v. NLRC and J.C. Tailor Shop and/or Johnny They were told to be present from the opening of the
Co., 375 Phil. 855 [1999] citing Makati Haberdashery, Inc. v. store up to closing time and were required to follow the
NLRC, 259 Phil. 52 [1989]) The requirement of complying company rules on cleanliness and decorum. They
with quota, company code of conduct and supervision by bought their own shoe shine boxes, polish and rags. The
unit managers do not go into means and methods by which boys were paid by their customers for their services but
Gregorio must achieve his work. He has full discretion on the payment is coursed through the store’s cashier, who
how to meet his quota requirement, hence, there is no pays them before closing time. They were not
employer-employee relationship between Gregorio and supervised in their work by any managerial employee
Guaranteed. of the store but for a valid complaint by a customer or
for violation of any company rule, they can be refused
ALTERNATIVE ANSWER: Yes, Gregorio is Guaranteed’s admission to the store. Were the boys employees of the
employee. The fact that Gregorio was made to agree to a store? Explain. (2016 Bar)
Code of Conduct and was supervised by a Unit Manager are
indicators that he is an employee of Guaranteed by using the A: Yes. The elements to determine the existence of an
control test mention in the Makati Haberdashery case. employment relationship are: (a) the selection and
furthermore, the fact that he was given a quota and can be engagement of the employee; (b) the payment of wages; (c)
terminated if he does not meet it all the more indicated that the employer’s power to control the employee’s conduct;
he is indeed an employee of Guaranteed. In Angelina and (d) the power of dismissal.
Francisco v. NLRC Kasei Corporation, G.R. No. 170087, August
31, 2006, the court added another element to ascertain The first element is present, as Matibay Shoe allowed shoe
employer-employee relationship. This is whether or not the shine boys in its shoe shine stand to render services that are
worker is dependent on the alleged employer for his desirable in the line of business of Matibay Shoe. In issuing
continued employment. This was dubbed as the economic ID’s to the shoe shine boys, the same signifies that they can
dependence test. The fact that Guaranteed can terminate represent themselves as part of the work force of Matibay
Gregorio if he does not meet the quota of 20 insurance Shoe.
policies a month, mean that the latter is economically
dependent on the former which negates his status as an The second element is also present. Requiring the
independent contractor and proves that he is an employee. customers to pay through the Matibay Shoe’s cashier
signifies that their services were not engaged by the
b. Suppose Gregorio is appointed as Unit Manager and customers. Equally important, it was Matibay Shoe which
assigned to supervise several underwriters. He gave the shoe shine boys their daily wage.
holds office in the company premises, receives an
overriding commission on the commissions of his The third element is satisfied. Requiring the shoe shine boys
underwriters, as well as a monthly allowance from to be present from store opening until store closing and to
the company, and is supervised by a branch follow company rules on cleanliness and decorum shows
manager. He is governed by the Code of Conduct for that they cannot conduct their activity anywhere else but
Unit Managers. Is he an employee of Guaranteed? inside the store of Matibay Shoe, hence, their means and
Explain. (2016 Bar) methods of accomplishing the desired services for the
customers of Matibay Shoe was controlled by it.
A: Yes, Gregorio is an employee. In fact, he is deemed as a
regular employee. As a unit manager who was tasked to Lastly, the fourth element is made apparent when Matibay
supervise underwriters, he can be said to be doing a task Shoe barred the shoe shine boys from continuing with their
which is necessary and desirable to the usual business of work-related activity inside its establishment.
Guaranteed. Article 295 of the Labor Code provides that
“The provisions of written agreement to the contrary ALTERNATIVE ANSWER: No. The elements to determine
notwithstanding and regardless of the oral agreement of the the existence of an employment relationship are: (a) the
parties, an employment shall be deemed to be regular selection and engagement of the employee; (b) the payment
where the employee has been engaged to perform activities of wages; (c) the employer’s power to control the
which are usually necessary or desirable in the usual employee’s conduct; and (d) the power of dismissal.
business or trade of the employer, xxx”
The first element is absent. The mere issuance of an ID to
ALTERNATIVE ANSWER: Yes. Article 219(m) of the Labor the boys is not conclusive of the power of selection of
Code defines a Managerial employee as one who is vested Matibay Shoe. They may be given IDs merely as a security
with the powers or prerogatives to lay down and execute measure for the establishment
management policies and/or to hire, transfer, suspend, lay-
off, recall, discharge, assign or discipline employees. As Furthermore, using the control test, the boys have exclusive
Gregorio was appointed Unit Manager, the means and power over the means and method by which the shoe
methods of accomplishing his goal come under the shining activity is to be conducted.
guideline laid down by Guaranteed.
KINDS OF EMPLOYMENT
ANOTHER ALTERNATIVE ANSWER: No. Guaranteed did
not define the duties and responsibilities of Gregorio; Probationary (2016, 2006, 2001, 1998, 1995, 1993,
Guaranteed left it to Gregorio’s discretion as to how he will 1992, 1988, 1987 Bar)
15
Labor Law and Social Legislation
Q: What limitations, if any, do the law and six months with his consent. It was to give him an
jurisprudence impose on an employer's right to opportunity to improve his performance.
terminate the services of a probationary employee?
(2001 Bar). Thus, it was legal for Y Company to terminate Mr. X for his
failure to meet company standard as a probationary
worker. The Labor Code provides that probationary
A: The Labor Code (in Art. 281) provides that the services employment shall not exceed six (6) months. But the
of an employee who has been engaged on a probationary Supreme Court has ruled that said probationary period
basis may be terminated for a just cause or when he fails to could be extended with the consent of the probationary
qualify as a regular employee in accordance with employee lo give him an opportunity to improve his
reasonable standards made known by the employer to the performance. (Art. 281. Labor Code)
employee at the time of his engagement. If the
probationary employee is being terminated for just cause, Q: Amaya was employed as a staff nurse by St. Francis
he must, of course, be given due process before his Hospital (SFH) on July 08 2014 on a probationary
termination. status for six months. Her probationary contract
required, among others, strict compliance with SFH’s
Q: During their probationary employment, eight (8) Code of Discipline.
employees were berated and insulted by their
On October 16, 2014, Dr. Ligaya, filed a complaint with
supervisor. In protest, they walked out. The supervisor
the SFH Board of Trustees against Amaya for uttering
shouted at them to go home and never to report back
slanderous remarks against the former. Attached to
to work. Later, the personnel manager required them
the complaint was a letter of Minda, mother of a patient,
to explain why they should not be dismissed from
who confirmed the following remarks against Dr.
employment for abandonment and failure to qualify
Ligaya:
for the positions applied for. They filed a complaint for
illegal dismissal against their employer. As a Labor “Bakit si Dr. Ligaya pa ang napili mong ‘pedia’
Arbiter, how will you resolve the case? (2006 Bar) eh ang tanda tanda na n’un? E makakalimutin
na yun x x x Alam mob a, kahit wala naming
A: I will rule in favor of management. diperensya yung baby, ipinapa-isolate niya?”
First of all, there was no abandonment because there was The SFH President asks you, being the hospital’s
no intention not to return to work. It was just that the 8 counsel, which of these two (2) options is the legal and
employees were berated and insulted and even told never proper way of terminating Amaya: (a) terminate her
to report back to work. It was but natural for them to feel for a just cause under Art. 228 of the Labor Code
demoralized, but there was never an indication to abandon (termination by Employer); or (b) terminate her for
their employment. violating her probationary contract. Explain (2016
Bar)
The probationary workers could, however, be terminated
for failing to meet probationary standards. If the reasons A: I will advise the President of SFH to terminate Amaya for
for the supervisor’s berating and insulting behavior were violating her probationary contract. Part and parcel of the
poor or substandard performance on the part of the standards of her employment is to strictly follow the Code
workers, their probationary employment could be legally of Conduct of SFH. The act of defaming Dr. Ligaya is
terminated. certainly a misdemeanor that is usually not acceptable in
any work environment. With such attitude Amaya
displayed, she cannot pass the company standard of SFH.
Q: Mr. X was hired by Y Company on probation for six
months as general utility worker. On the expiration of I will not suggest the dismissal of Amaya under Art. 297.
the probationary period, Mr. X was informed by Y Co. Though she displayed misconduct, the same is not work-
that his work was unsatisfactory and failed to meet the related, as spreading a rumor against a Doctor does not go
required standard. To give him a chance to improve his into the duties and responsibilities of a staff nurse.
performance, Y Co. instead of terminating Mr. X’s serv-
ices, extended, with X’s written consent, the probation ALTERNATIVE ANSWER: I will advise the President of SFH
period for another three months. This extension to terminate Amaya for a just cause under Art. 297 of the
notwithstanding, his performance did not improve, on Labor Code in relation Art. 296. The Labor Code assigns a
account of which, Y Co. terminated Mr. X's services at separate provision, Art. 296, and provides a different set of
the end of the extended period. Mr. X filed a case for grounds for the dismissal of probationary employees.
illegal dismissal contending that he was already
regular at the time of his dismissal pursuant to Art. 281 The law does not preclude the employer from terminating
of the Labor Code, the particular portion of which the probationary employment, if the employer finds that
provides: the probationary employee is not qualified for regular
employment. As long as the termination was made for
reasons provided under Art. 296 of the Labor Code before
“xxx. An employee who is allowed to work after a
the expiration of the six-month probationary period, the
probationary period shall be considered a regular em-
employer is well within its rights to sever the employer-
ployee."
employee relationship. (Pasamba v. NLRC, G.R. No. 168421,
Therefore, he could not have been lawfully dismissed June 8, 2007)
for failure to meet company standards as a
probationary worker. Decide with reason. (1993 Bar) Regular (2008, 2007, 2005 Bar)
A: Mr. X could not argue that because his probationary Q: Super Comfort Hotel employed a regular pool of
period was extended beyond six months he was now a “extra waiters” who are called or asked to report for
regular employee and thus could no longer be terminated duty when the Hotel’s volume of business is beyond the
except for Just cause or when authorized by law. The fact is capacity of the regularly employed waiters to
that the probationary period of Mr. X was extended beyond undertake. Pedro has been an “extra waiter” for more
17
Labor Law and Social Legislation
A: A project worker is employed for a specific project or employment regular applies only to casual employees,
undertaking the completion or termination of which is hence, Mariano does not belong to the bargaining unit of
determined at the time of his engagement. His work need regular employees.
not be incidental to the business of the employer. His
employment may exceed 1 year without necessarily making Q: Design Consultants, Inc. was engaged by the PNCC to
him a regular employee. supervise the construction of the South Expressway
Extension. Design Consultants, Inc. hired Omar as a
A casual employee is engaged to perform a job, work, or driver for two (2) years. After his two-year contract
service which is incidental to the business of the employer; expired, he was extended another contract for nine (9)
moreover, the definite period of his employment is made months. These contracts were entered into during the
known to him at the time of his engagement. His continued various stages and before the completion of the
employment after the lapse of one year makes him a regular extension project. Omar claims that because of these
employee. Under the Social Security Law, employment that repeated contracts, he is now a regular employee of
is purely casual and not for the purpose of occupation or Design Consultants, Inc. Is he correct? Explain briefly.
business of the employer is not under the coverage of the (2002 Bar)
aforesaid law.
A: Yes. The principal test for determining whether a
A "project worker", on the other hand, is a specific term particular employee is a “project employee” as
used to designate workers in the construction industry distinguished from a “regular employee” is whether or not
hired to perform a specific undertaking for a fixed period the “project employee” was assigned to carry out a “specific
which is co-terminus with a project or phase thereof project or undertaking,” the duration and scope of which
determined at the time of the engagement of the employee were specified at the time the employee was engaged for
(Policy Instruction No, 19. DOLE), and it is mandatorily the projects. In the problem given, there is no showing that
required that a termination report be submitted to the Omar was informed that he was to be assigned to a “specific
nearest public employment office upon the completion of project or undertaking.” Neither has it been established
the construction project [Aurora Land Projects Corp. v. NLRC. that he was informed of the duration and scope of such
266 SCRA 48 (Jan, 2. 1997)]; There is no such requirement project or undertaking at the time of his engagement.
for an ordinary contractual worker. [Philex Mining Corp. v. NLRC, 312 SCRA 119 (1999)]
Q: Diosdado, a carpenter, was hired by Building Moreover, the re-hiring of Omar is sufficient evidence of
Industries Corporation (BIC), and assigned to build a the necessity or the indispensability of his services to the
small house in Alabang. His contract of employment company’s business. [Aurora Land Projects Corp v. NLRC,
specifically referred to him as a “project employee,” 266 SCRA 48(1997)] Hence, Omar is correct in claiming
although it did not provide any particular date of that he is a regular employee of Design Consultants, Inc.
completion of the project. Is the completion of the
house a valid cause for the termination of Diosdado’s Fixed-term (2014 Bar)
employment? If so, what are the due process
requirements that the BIC must satisfy? If not, why not? Q: Lucy was one of approximately 500 call center agents
(2009 Bar) at Hambergis, Inc. She was hired as a contractual
employee four years ago. Her contracts would be for a
A: The completion of the house should be valid cause for duration of five (5) months at a time, usually after a
termination of Diosdado’s employment. Although the one-month interval. Her re-hiring was contingent on
employment contract may not state a particular date, but if her performance for the immediately preceding
it did specify that the termination of the parties contract. Six (6) months after the expiration of her last
employment relationship was to be on a “day certain” – the contract, Lucy went to Hambergis personnel
day when the phase of work would be completed – the department to inquire why she was not yet being
employee cannot be considered to have been a regular recalled to work. She was told that her performance
employee (Filipinos Pre-Fabricated Building systems v. during her last contract was “below average.” Lucy
Puente, 453 SCRA 820 [2005]). seeks your legal advice about her chances of getting her
job back. What will your advice be? (2014 Bar)
To satisfy due process requirement, under DOLE
Department Order No. 19, series of 1993, the employer is A: Lucy cannot get her job back. She is a fixed-term
required to report to the relevant DOLE Regional Office the employee and as such, her employment terminates upon
fact of termination of project employees as a result of the the expiration of her contract. (Rowell Industrial
completion of the project or any phase thereof in which Corporation v. Court of Appeals, 517 SCRA 691 [2007]).
one is employed.
Subcontracting versus Labor-Only Contracting (2016,
Q: Martillo and other similarly-situated project 2015, 2012, 2005, 2004, 2003, 2002, 2000, 1994 Bar)
workers demanded that the increases be extended to
them, inasmuch as they should now be considered Q: What is a “labor-only" contract? (1994)
regular employees and members of the bargaining unit.
If you were ABC's legal counsel, how would you respond A: “Labor-only" contract is a contract between an employer
to this demand? (2005 Bar) and a person who supplies workers to such employer where
the person supplying workers does not have substantial
A: As legal counsel for ABC, I would argue that the capital or investment in the form of tools, equipment,
employment of Martillo was fixed for a specific project or machineries, work premises, among others, and the
undertaking, the completion or termination of which has workers recruited and placed by such person are perform-
been determined at the time of his engagement. Rendering ing activities which are directly related to the principal
14 months of work does not make him a regular employee, business of such employer. (Art. 106, Labor Code)
when to begin with, he was employed for a specific project,
i.e., which is the construction of a particular 40-storey Q: Distinguish the liabilities of an employer who en-
building. The rule on more than 1 year of service making the gages the services of a bona fide “independent
19
Labor Law and Social Legislation
including benefits and protection due them, as well as A: Antonio's claim for overtime and other benefits should
remittance to the proper government entities of all be paid by Yosi Cigarette Factory. The Labor Code provides
withholding taxes, Social Security Service, and that in the event that the contractor or subcontractor fails
Philhealth premiums, in accordance with relevant to pay the wages of his employees, the employer shall be
laws. jointly and severally liable to the extent of the work
performed under the contract in the same manner and
As the TMRs wanted to continue working at Empire, extent that he is liable to employees directly employed by
they submitted job applications as TMRs with Wave. his contractor or subcontractor for any violation of any
Consequently, Wave hired them for a term of five (5) provision of the Labor Code.
months, or from June 7, 2007 to November 6, 2007,
specifically to promote Empire’s products. Q: Manpower Inc. (CMI) had provided janitorial
services to the National Economic Development
When the TMRs’ 5 month contracts with Wave were Authority (NEDA) since April 1988. Its service contract
about to expire, they sought renewal thereof, but were was renewed every three months. However, in the
refused. Their contracts with Wave were no longer bidding held on July 1992, CMI was disqualified and
renewed as empire hired another agency. This excluded. In 1993, six janitors of CMI formerly assigned
prompted them to file complaints for illegal dismissal, at NEDA filed a complaint for underpayment, of wages.
regularization, non-payment of service incentive leave Both CMI and NEDA were impleaded as respondents for
and 13th month pay against Empire and Wave. Are the failure to comply with NCR Wage Orders Nos. 01 and 02,
TMRs employees of Empire? (2016 Bar) which took effect on November 1, 1990 and January 2,
A: Yes. From the time Empire contracted the services of 1992, respectively.
Style, both engaged in labor-only contracting. In BPI
Should NEDA, a government agency subject to
Employees Union-Davao City FUBU v. BPI, G.R. No. 174912,
budgetary constraints, be held liable solidarity with
July 24, 2013, it was ruled that where any of the following
CMI for the payment of salary differentials due the
elements is present, there is labor-only contracting:
complainants? Cite the legal basis of your answer.
a. The contractor or subcontractor does not have (2004 Bar)
substantial capital or investment which relates to the
job, work or service to be performed and the A: NEDA shall be held solidarity liable with CMI for the payment of
employees recruited, supplied or placed by such salary differentials due to the complainants, because NEDA is the
contractor or subcontractor are performing activities indirect employer of said complainants. The Labor Code provides
which are directly related to the main business of the that xxx (A) person, partnership, association or corporation which,
principal; or not being an employer, contracts with an independent contractor
b. The contractor does not exercise the right to control for the performance of any work, task, job or project" xxx “shall be
over the performance of the work of the contractual jointly and severally liable with his contractor or subcontractor to
employee. such employees (of the contractor or subcontractor) to the extent
of work performed under the contract xxx" (Arts. 106 and 107,
The first element is present herein, as Style has no Labor Code)
substantial capital or investment in engaging in the supply
TERMINATION OF EMPLOYMENT (2015, 2004 BAR)
of services contracted out by Empire which is directly
related to the marketing and promotion of its clothing line. Q: Gabriela Liwanag has been working as a bookkeeper
The second element is present as it is inevitable for Empire at Great Foods, Inc. which operates a chain of high-end
to direct the activities of the TMRs to properly market and restaurants throughout the country, since 1970 when it
promote its product line. The subsequent contract of was still a small eatery at Binondo. In the early part of
Empire with Wave did not affect the regular employment the year 2003, Gabriela, who was already 50 years old,
of the TMRs with Empire as, through the Marketing reported for work after a week-long vacation in her
Director of Empire, the TMRs were under the control of province. It was the height of the SARS (Severe Acute
Empire. Thus, the five-month employment contract Respiratory Syndrome) scare, and management
entered into by the TMRs with Wave did not divest them of learned that the first confirmed SARS death case in the
their regular employment status with Empire. In addition, Philippines, a “balikbayan” nurse from Canada, is a
such scheme undermined the security of tenure of the townmate of Gabriela. Immediately, a memorandum
TMRs which is constitutionally guaranteed, hence, the was issued by management terminating the services of
contract of the TMRs with Wave is void ab initio. Gabriela on the ground that she is a probable carrier of
Solidary liability (2009, 2005, 2004 Bar) SARS virus and that her continued employment is
prejudicial to the health of her co-employees. Is the
Q: Antonio Antuquin, a security guard, was caught action taken by the employer justified? (2004 Bar)
sleeping on the job while on duty at the Yosi Cigarette
Factory, As a result, he was dismissed from A: The employer’s act of terminating the employment of
employment by the Wagan Security Agency, an Gabriela is not justified. There is no showing that said
independent contractor. At the time of his dismissal, employee is sick with SARS, or that she associated or had
Antonio had been serving as a watchman in the factory contact with the deceased nurse. They are merely
for many years, often at stretches of up to 12 hours, townmates. Furthermore, there is no certification by a
even on Sundays and holidays, without overtime, competent authority that the disease is of such a nature or
nighttime and rest da~ benefits, He thereafter filed a such a stage that it cannot be cured within a period of six
complaint for illegal dismissal and non-payment of months even with proper medical treatment.
benefits against Yosi Cigarette Factory, which he (Implementing Rules, Book VI, Rule 1, Sec. 8, Labor Code).
claimed was his actual and direct employer. As the
Labor Arbiter assigned to hear the case, how would you Q: Rico has a temper and, in his work as Division
correctly resolve Antonio's claim for overtime and Manager of Matatag Insurance, frequently loses his
other benefits, (2005 Bar) temper with his staff. One day, he physically assaults
his staff member by slapping him. The staff member
A: I will rule in favor of the employees. JKL factory merely A: I will deny the motion to dismiss. "Corporate officers" in
suspended its operations as a result of the fire that gutted the context of Presidential Decree No. 902-A are those
its factory. Article 286 of the Labor Code states that an officers of the corporation who are given that character by
employer may bona fide suspend the operation of its the Corporation Code or by the corporation's by-laws.
business for a period not exceeding six (6) months. In such Section 25 of the Corporation Code enumerates three
a case, there would be no termination of the employment of specific officers that in law are considered as corporate
the employees, but only a temporary displacement. Since, officers – the president, secretary and the treasurer. Lincoln
the suspension of work lasted more than six months, there is not one of them. There is likewise no showing that his
is now constructive dismissal (Sebuguero v. NLRC, 245 SCRA position as Assistant Vice-President is a corporate officer in
532 [1995]). the company's by-laws. The Labor Arbiter therefore, has
jurisdiction over the case (Art. 217 (a) (2), Labor Code).
Q: RS, a security guard, filed a complaint for illegal
dismissal against Star Security Agency. He alleged he TERMINATION BY EMPLOYER
was constructively dismissed after ten years of service
to the Agency. Having 'been placed on "off detail" and a. Just Causes (2016, 2014, 2013, 2009, 2008, 2004,
"floating status" for 6 months already, he claimed the 2003, 2000, 1996, 1995, 1993, 1989 Bar)
Agency just really wanted to get rid of him because it
required him to take a neuropsychiatric evaluation test
by Mahusay Medical Center. RS said he already Q: Distinguish between dismissal of an employee for
submitted the result of his evaluation test by Brent just cause and termination of employment for
Medical Clinica – precondition to a new assignment, but authorized cause. Enumerate examples of just cause
the report was rejected by the Agency. RS added that and authorized cause. (2000 Bar)
Mahusay Medical Center had close ties with Star's
president. It could manipulate tests to favor only those A: Dismissal for a just cause is founded on faults or
guards whom the Agency wanted to retain. Star misdeeds of the employee. Separation pay, as a rule, will
defended its policy of reliance on Mahusay Medical not be paid. Examples: serious misconduct, willful
Center because it has been duly accredited by the disobedience, commission of crime, gross and habitual
Philippine National Police. It is not one of those dubious neglect, fraud and other causes analogous to the foregoing.
testing centers issuing readymade reports. Star cited its (Art. 282, Labor Code).
sad experience last year when a guard ran amuck and
shot an employee of a client bank. Star claimed Termination for authorized causes are based on business
management prerogative in assigning its guards, and exigencies or measures adopted by the employer, not
prayed that RS' complaint be dismissed. What are the constituting faults of the employee. Payment of separation
issues? Identify and resolve them. (2004 Bar) pay at varying amounts is required. Examples: redundancy,
A: On the first Issue, there is constructive dismissal. RS closure, retrenchment, installation of labor saving device
cannot be placed on "off - detail" and "floating status" and authorized cause. [Art. 283-284, Labor Code).
21
Labor Law and Social Legislation
Q: Arnaldo, President of “Bisig” Union in Femwear Roman was asked to explain. After hearing his expla-
Company, readied himself to leave exactly at 5:00 p.m. nation, Roman was dismissed for willful disobedience.
which was the end of his normal shift to be able to send Roman filed a case for illegal dismissal against the
off his wife who was scheduled to leave for overseas. Double-Ten Corporation with prayer for reinstatement
However, the General Manager required him to render and full back wages without loss of seniority rights,
overtime work to meet the company's export quota. plus moral and exemplary damages and attorney's
Arnaldo begged off, explaining to the General Manager fees. Roman contended that since there was no
that he had to see off his wife who was leaving to work emergency situation and there were other drivers
abroad. The company dismissed Arnaldo for available, his refusal to drive for the manager, and later
insubordination. He filed a case for illegal dismissal. for his supervisor, was not serious enough to warrant
Decide. (2008 Bar) his dismissal. On the other hand, he claimed that he
was being punished because of his activities as a
A: Arnaldo cannot be dismissed for insubordination. This steward of his union. If you were the Labor Arbiter,
is so because one of the requisites for insubordination is would you sustain Roman? Discuss fully. (1995 Bar)
absent. It cannot be said that Arnaldo’s conduct was
characterized by a “wrongful and perverse attitude.” A: If I were the Labor Arbiter. I will not sustain Roman. It is
Arnaldo can be said to have been motivated by his honest true that it would be an unfair labor practice for an
belief that the order was unreasonable because he had to employer to discriminate against his employee for the
send off his wife who was scheduled to leave for overseas. latter’s union activities.
Q: Sergio, an employee of Encantado Philippines, Inc. But in the case, the Corporation is not discriminating
(EPI), was at the company canteen when Corazon, a against Roman because he is a union official. When the
canteen helper, questioned him for his use of Manager of Roman told him to pick up some documents
somebody else’s identification card (ID). Sergio flared from a certain bank, this was a lawful order and when
up and shouted at Corazon “Wala kang pakialam! Kung Roman did not obey the order, he was disobedient; and
gusto mo. itapon ko itong mga pagkain ninyo!” When when he disobeyed a similar request made later in the
Sergio noticed that some people where staring at him afternoon of same day, he was guilty of willful disobedience
rather menacingly, he left the canteen but returned a to do what management asked him to do. This is just cause
few minutes later to remark challengingly “Sino ba ang for his termination.
nagagalit" Sergio then began smashing some food
items that were on display for sale in the canteen, after Q: Jose and Erica, former sweethearts, both worked as
which he slapped Corazon which caused her to fall and sales representatives for Magna, a multinational firm
suffer contusions. The incident prompted Corazon to engaged in the manufacture and sale of pharmaceutical
file a written complaint with Gustavo, the personnel products. Although the couple had already broken off
manager of EPI against Sergio. their relationship, Jose continued to have special
feelings for Erica.
Gustavo required Sergio to explain in writing why no
disciplinary action should be taken against him. In his One afternoon, Jose chanced upon Erica riding in the
written explanation, Sergio admitted his misconduct car of Paolo, a co-employee and Erica's ardent suitor;
but tried to explain it away by saying that he was under the two were on their way back to the office from a sales
the influence of liquor at the time of the incident. call on Silver Drug, a major drug retailer. In a fit of
Gustavo thereafter issued a letter of termination from extreme jealousy, Jose rammed Paolo's car, causing
the employment of Sergio for serious misconduct. severe injuries to Paolo and Erica. Jose's flare up also
Sergio now files a complaint for illegal dismissal, argu- caused heavy damage to the two company-owned cars
ing that his acts did not constitute serious misconduct they were driving.
that would justify his dismissal. Decide. (1996 Bar)
a. As lawyer for Magna, advise the company on whether
A: The acts of Sergio constituted serious misconduct. Thus, just and valid grounds exist to dismiss Jose.
there was just cause for his termination. The fact that he
A: Jose can be dismissed for serious misconduct, violation
was under the influence of liquor at the time that he did
of company rules and regulations, and commission of a
what he did does not mitigate instead it aggravates, his
crime against the employer’s representatives. Article 282 of
misconduct. Being under the influence of liquor while at
the Labor Code provides that an employer may terminate
work is by itself serious misconduct.
an employment for any serious misconduct or willful
disobedience by the employee of the lawful orders of his
Q: Roman had been a driver of Double-Ten Corporation
employer or his representatives in connection with his
for ten (10) years. As early as his fifth year in the
work.
service he was a ready commended as a Model
Employee and given a salary increase. On his seventh Misconduct involves “the transgression of some established
year, he became a steward of his labor union. Since and definite rule of action, forbidden act, a dereliction of
then he became disputatious and obstinate and his duty, willful in character, and implies wrongful intent and
performance fell below par. One day his manager told not mere error in judgment.” For misconduct to be serious
him to pick up some documents from a certain bank and therefore a valid ground for dismissal, it must be:
which were needed to close a business transaction.
Roman did not obey. He said he had an important 1. of grave and aggravated character and not merely
personal engagement. Moreover, he did not want to trivial or unimportant and;
drive a vehicle that was not airconditioned. When his 2. connected with the work of the employee.
immediate supervisor asked him in the afternoon to
drive an airconditioned car, Roman again refused. He b. Assuming this time that Magna dismissed Jose from
said he did not want to drive as he wanted to leave the employment for cause and you are the lawyer of Jose,
office early. how would you argue the position that Jose's dismissal
was illegal? (2013 Bar)
23
Labor Law and Social Legislation
service, whichever is higher; (4) that the employer dismissal of Leo be successfully assailed by him? (2003
exercises its prerogative to retrench employees in good Bar)
faith for the advancement of its interest and not to defeat
or circumvent the employees' right to security of tenure; A: Yes. Given the factual setting in the problem, and since
and (5) that the employer used fair and reasonable criteria ‘‘nothing more (have) been established”, the dismissal of
in ascertaining who would be dismissed and who would be Leo can be successfully assailed by him. This is so because
retained among the employees, such as status (i.e., whether the burden of proof is upon the employer to show
they are temporary, casual, regular or managerial compliance with the following requisites for reduction of
employees), efficiency, seniority, physical fitness, age, and personnel:
financial hardship for certain workers.
1. Losses or expected losses should be substantial and not
Q: Hagibis Motors Corporation (Hagibis) has 500 merely de minimis;
regular employees in its car assembly plant. Due to the 2. The expected losses must be reasonably imminent, and
Asian financial crisis, Hagibis experienced very low car such imminence can be perceived objectively and in
sales resulting to huge financial losses. It implemented good faith by the employer.
several cost-cutting measures such as cost reduction 3. It must be necessary and likely to prevent the expected
on use of office supplies, employment hiring freeze, losses. The employer must have taken other measures
prohibition on representation and travel expenses, to cut costs other than labor costs; and
separation of casuals and reduced work week. As 4. Losses if already realized, or the expected losses must
counsel of Hagibis, what are the measures the company be proved by sufficient and convincing evidence.
should undertake to implement a valid retrenchment? (Lopez Sugar Corp. v. Federation of Sugar Workers. 189
Explain. (2016 Bar) SCRA 179 [19901]).
A: For a valid retrenchment, the following requisites must Moreover, the notice requirements to be given by Daisy's
be complied with: (a) the retrenchment is necessary to Department Store to DOLE and the employees concerned
prevent losses and such losses are proven; (b) written 30 days prior to the intended date of termination, as well
notice to the employees and to the DOLE at least one month as the requisite separation pay, were not complied with.
prior to the intended date of retrenchment; and (c)
payment of separation pay equivalent to one-month pay or Q: ABC Tomato Corporation, owned and managed by
at least one-half month pay for every year of service, three (3) elderly brothers and two (2) sisters, has been
whichever is higher. in business for 40 years. Due to serious business losses
and financial reverses during the last five (5) years,
Jurisprudential standards for the losses which may justify they decided to close the business. (2006 Bar)
retrenchment are: firstly, the losses expected should be
a. As counsel for the corporation, what steps will you
substantial and not merely de minimis in extent. If the loss
take prior to its closure?
purportedly sought to be forestalled by retrenchment is
clearly shown to be insubstantial and inconsequential in
character, the bona fide nature of the retrenchment would A: As counsel for the corporation, I will see to it that the
appear to be seriously in question; secondly, the corporation shall serve a written notice on its intended
substantial loss must be reasonably imminent, as such date of closing or cessation of operation on the workers of
imminence can be perceived objectively and in good faith the corporation and the Department of Labor and
by the employer; xxx thirdly, because of the consequential Employment at least one month before the intended date
nature of retrenchment, it must be reasonably necessary of the closure or cessation of operation.
and is likely to be effective in preventing the expected
losses; xxx lastly, alleged losses if already realized, and the b. Are the employees entitled to separation pay?
expected imminent losses sought to be forestalled, must be
proved by sufficient and convincing evidence. (Manatad v. A: The employees of the corporation are not entitled to
Philippine Telegraph and Telephone Corporation, G.R. No. separation pay because Article 283 of the Labor Code
12363, March 07, 2008) expressly provides that if the closure or cessation of
operation of an establishment is due to serious business
Hagibis should exercise its prerogative to retrench losses or financial reverses, the employees are not entitled
employees in good faith. It must be for the advancement of to separation pay.
its interest and not to defeat or circumvent the employees’
right to security of tenure. Hagibis should use fair and c. If the reason for the closure is due to old age of the
reasonable criteria such as status, efficiency, seniority, brothers and sisters:
physical fitness, age and financial hardship for certain
workers in ascertaining who would be dismissed and who 1. Is the closure allowed by law?
would be retained among the employees.
A. Yes, the closure is allowed by law. For a bona fide
Q: Daisy’s Department Store hired Leo as a checker to reason, an employer can lawfully close shop at any time.
apprehend shoplifters. Leo later became Chief of the Just as no law forces anyone to go into business, no law can
Checkers Section and acquired the status of a regular compel anybody to continue the same. It would be
employee. By way of a cost-cutting measure, Daisy's stretching the intent and spirit of the law if the Court
decided to abolish the entire Checkers Section. The interferes with management’s prerogative to close or cease
services of Leo, along with those of his co-employees its business operations just because the business is not
working in the same section, were terminated on the suffering from any loss or because of the desire to provide
same day. A month after the dismissal of Leo, Daisy’s workers continued employment (Alahang Country Club,
engaged the services of another person as an ordinary Inc. vs. NLRC, 466 SCRA 329 [2005]).
checker and with a salary much lower than that which
Leo used to receive. Given the above factual settings Q: Zienna Corporation (Zienna) informed the
(nothing more having been established), could the Department of Labor and Employment Regional
A: No. In SME Bank v. De Guzman, G.R. No. 184517 and The Supreme Court in Tanala v. NLRC, 252 SCRA 314 (1996),
186641, October 8, 2013, there are two (2) types of and in a long line of earlier cases, ruled:
corporate acquisitions: asset sales and stock sales. In asset
sales, the corporate entity sells all or substantially all of its xxx This Court has repeatedly held that to meet the
assets to another entity. In stock sales, the individual or requirements of due process, the law requires that
corporate shareholders sell a controlling block of stock to an employer must furnish the workers sought to be
new or existing shareholders. Asset sales happened in this dismissed with two written notices before
case; hence, Zienna is authorized to dismiss its employees, termination of employment can be legally effected,
but must pay separation pay. The buyer Zandra, is not that is, (1) a notice which apprises the employee of
obliged to absorb the employees affected by the sale, nor is the particular acts or omissions for which his
it liable for the payment of their claims. The most that dismissal is sought; and (2) subsequent notice,
Zandra may do, for reasons of public policy and social after due hearing, which informs the employee of
justice, is to give preference in hiring qualified separated the employers decision to dismiss him.
personnel of Zienna.
Q: Alfredo was dismissed by management for serious
c. Due Process (2016, 2006, 1999, 1998, 1997, 1995, misconduct. He filed suit for illegal dismissal, alleging
1994, 1990 Bar) that although there may be just cause, he was not
afforded due process by management prior to his
Q: Distinguish between the substantive and the
termination. He demands reinstatement with full
procedural requirements for the dismissal of an
backwages.
employee (1994 Bar)
A: This is the substantive requirement for the valid What are the twin-requirements of due process which
dismissal of an employee: There should be a just cause for the employer must observe in terminating or
the termination of an employee or that the termination is dismissing an employee? Explain. (2009 Bar)
authorized by law.
A: The twin requirements of due process are notice and
This is the procedural requirement: The employer should hearing to be given to the worker. There is likewise a two-
furnish the employee whose employment is sought to be notice requirement rule, with the first notice pertaining to
terminated a written notice containing a statement of the specific causes or grounds for termination and a directive
causes for termination and the employer should afford the to submit a written explanation within a reasonable period.
employee to be terminated ample opportunity to be heard “The second notice pertains to notice of termination.
and to defend himself with the assistance of his representa- Pursuant to Perez v. Philippine Telegraph and Telephone
tive if he so desires. (Arts. 279 and 277 (b). Labor Code) Company (G.R. No. 152048, 7 April 2009), the Court held that
a hearing or conference is not mandatory, as long as the
Twin-notice requirement (2009, 2006, 1998 Bar) employee is given “ample opportunity to be heard”, i.e. any
meaningful opportunity (verbal or written) to answer the
Q: Assuming the existence of valid grounds for charges against him or her and submit evidence in support
dismissal, what are the requirements before an of the defense, whether in a hearing, conference, or some
employer can terminate the services of an employee? other fair, just and equitable way.
25
Labor Law and Social Legislation
Q: Inday was employed by Herrera Home the hearing before the Labor Arbiter, SSS proved by
Improvements, Inc. (Herrera Home) as interior substantial evidence JVs misappropriation of company
decorator. During the first year of her employment, she funds and various infractions detrimental to the
did not report for work for one month. Hence, her business of the company. JV, however, contended that
employer dismissed her from the service. She filed his dismissal was illegal because the company did not
with the Labor Arbiter a complaint for illegal dismissal comply with the requirements of due process. Did SSS
alleging she did not abandon her work and that in comply with the requirements of procedural due
terminating her employment, Herrera Home deprived process in the dismissal from employment of J'V?
her of her right to due process. She thus prayed that she Explain briefly (1999 Bar)
be reinstated to her position.
A: In connection with the right to due process in the
Inday hired you as counsel. In preparing the position termination of an employee, the Labor Code (in Article
paper to be submitted to the Labor Arbiter, explain the 277(b)) requires that the employer furnish the worker
standards of due process which should have been whose employment is sought to be terminated a written
observed by Herrera Home in terminating your client's notice containing a statement of the causes for termination
employment. (2006 Bar) and shall afford ample opportunity to be heard and to
defend himself with the assistance of his representative if
A: The Labor Code provides the following procedure to be he so desires.
observed in terminating the services of an employee based SSS did not comply with the above described requirements
on just causes as defined in Art. 282 of the Code:
for due process. The memorandum order was for the
preventive suspension of JV, not a notice for his
a) A written notice must be served on the employee termination and the causes of his termination.
specifying the ground or grounds for termination and
giving him reasonable opportunity within which to 3. Reliefs for Illegal Dismissal (2009, 2007, 2002, 2001,
explain his side: 1997, 1995, 1994 Bar)
b) A hearing or conference shall be conducted during
which the employee concerned, with the assistance of Q: Discuss briefly the instances when noncompliance
counsel if he so desires, is given an opportunity to by the employer with a reinstatement order of an
respond to the charge, present his evidence or rebut illegally dismissed employee is allowed. (2007 Bar)
the evidence presented against him; and
c) A written notice of termination must be served on the A: Despite a reinstatement order, an employer may not
employee indicating that upon due consideration of all reinstate an employee in the following instances: (a) when
the circumstances, grounds have been established to the position or any substantial equivalent thereof no longer
justify his termination. exists; (b) when reinstatement has been rendered moot and
academic by supervening events, such as insolvency of the
2. Hearing; Ample opportunity to be heard (1994, employer as declared by the court or closure of the
1999) business; (c) the existence of strained relations between the
employer and the illegally dismissed employee, provided
Q: Atty. Oliza heads the legal department of Company X the matter is raised before the Labor Arbiter. In the event
with the rank and title of Vice-President. During his that reinstatement is no longer feasible, or if the employee
leave of absence, his assistant took over as acting head chooses not to be reinstated, the employer shall pay him
of the legal department. Upon his return, Atty. Oliza was separation pay in lieu of reinstatement pending Appeal
informed in writing that his services were no longer (Article 223, Labor Code)
needed, it appearing that the Company had lost so many
cases by default due to his incompetence. Atty. Oliza Q: A strike was staged in Mella Corporation because of
filed a case for illegal dismissal. Will his case prosper? a deadlock in CBA negotiations over certain economic
(1994 Bar) provisions. During the strike, Mella Corporation hired
replacements for the workers who went on strike.
A: His case will prosper. He was not given procedural due
Thereafter, the strikers decided to resume their
process. He was not given the required notice, namely, a
employment. Can Mella Corporation be obliged to
written notice containing a statement of the causes for
reinstate the returning workers to their previous
termination, and he was not afforded ample opportunity to
positions? (1997 Bar)
be heard and to defend himself. But if, before the Labor
Arbiter, in a hearing of the case of illegal dismissal that Atty.
A: Yes. Mella Corporation can be obligated to reinstate the
Oliza may have filed, he is found to be grossly incompetent,
returning workers to their previous positions. Workers
this is Just cause for his dismissal. (Art. 277(b), Labor Code)
who go on strike do not lose their employment status except
when, while on strike, they knowingly participated in the
Q: Joseph Vilriolo (JV), a cashier of Seaside Sunshine
commission of illegal acts. The Labor Code expressly
Supermart (SSS), was found after an audit, to have cash
provides: Mere participation of a worker in a lawful strike
shortages on his monetary accountability covering a
should not constitute sufficient ground for termination of
period of about five months in the total amount of P48,
his employment, even if a replacement had been hired by
000.00. SSS served upon JV the written charge against
the employer during such lawful strike.
him via a memorandum order of preventive
suspension, giving JV 24 hours to submit his
Q: Eduardo Santiago, a project worker, was being
explanation. As soon as JV submitted his written
assigned by his employer, Bagsak Builders, to Laoag,
explanation within the given period, the same was
Ilocos Norte. Santiago refused to comply with the
deemed unsatisfactory by the company and JV was
transfer claiming that it, in effect, constituted a
peremptorily dismissed without any hearing.
constructive dismissal because it would take him away
from his family and his usual work assignments in
The day following his termination from employment.
Metro Manila. The Labor Arbiter found that there was
JV filed a case of illegal dismissal against SSS. During
no constructive dismissal but ordered the payment of
27
Labor Law and Social Legislation
Q: Ricky Marvin had worked for more than ten (10) month’s advance notice as well as notice to DOLE, with
years in 1GB Corporation. Under the terms of the the further advice that each employee may claim his
personnel policy on retirement, any employee who corresponding separation or retirement benefits
had reached the age of 65 and completed at least ten whichever is higher after executing the required
(10) years of service would be compulsorily retired waiver and quitclaim.
and paid 30 days’ pay for every year of service.
Dino Ramos and his co-employees who have all ren-
Ricky Marvin, whose immigrant visa to the USA had just dered more than 25 years of service, received their
been approved, celebrated his 60th birthday recently. retirement benefits. Soon after, Ramos and others
He decided to retire and move to California where the similarly situated demanded for their separation pay.
son who petitioned him had settled. The company The Company refused, claiming that under the CBA
refused to grant him any retirement benefits on the they cannot receive both benefits. Who is correct, the
ground that he had not yet attained the compulsory employees or the Company? (1994 Bar)
retirement age of 65 years as required by its personnel A: The employees are correct. In the absence of a
policy; moreover, it did not have a policy on optional or
categorical provision in the Retirement Plan and the CBA
early retirement. that an employee who receives separation pay is no longer,
entitled to retirement benefits, the employee is entitled to
Taking up the cudgels for Ricky Marvin, the union
the payment of both benefits pursuant to the social justice
raised the issue in the grievance machinery as
policy. (Conrado M. Aquino, et aL v. National Labor Relations
stipulated in the CBA. No settlement was arrived at and
Commission, et al., G.R No. 87653, 11 February 1992)
the matter was referred to voluntary arbitration. If you
were the Voluntary Arbitrator, how would you decide?
Briefly explain the reasons for your award. (2007 Bar)
Management Prerogative (2015, 2014, 2013, 2010,
A: I will grant Ricky Marvin the retirement benefits under 2003, 2002, 1994, 1993, 1989 Bar)
Art. 287 of the Labor Code.
Art. 287 of the Labor Code, as the minimum standard in law, Q: Which takes precedence in conflicts arising between
allows an employee an optional retirement upon reaching employers’s MANAGEMENT PREROGATIVE and the
the age of 60 years provided he rendered at least 5 years of employees right to security of tenure? Why? (1993
service - requirements that Ricky Marvin met under the Bar)
facts of the case.
A: The employee's right to security of tenure takes prece-
Q: After thirty (30) years of service, Beta Company dence over the employer's management prerogative. Thus,
compulsorily retired Albert at age 65 pursuant to the an employer's management prerogative includes the right
company's Retirement Plan. Albert was duly paid his to terminate the services of an employee but this man-
full retirement benefits of one (1) month pay for every agement prerogative is limited by the Labor Code which
year of service under the Plan. Thereafter, out of provides that the employer can terminate an employee
compassion, the company allowed Albert to continue only for a just cause or when authorized by law. This
working and paid him his old monthly salary rate, but limitation on management prerogative is because no less
without the allowances that he used to enjoy. than the Constitution recognizes and guarantees an em-
ployee’s right to security of tenure. (Art. 279. Labor Code:
After five (5) years under this arrangement, the Art. XIII, Sec. 3. Constitution)
company finally severed all employment relations with
Albert; he was declared fully retired in a fitting Q: Harbor View Hotel has an existing Collective
ceremony but the company did not give him any further Bargaining Agreement (CBA) with the union of rank-
retirement benefits. Albert thought this treatment and-file employees consisting, among others, of
unfair as he had rendered full service at his usual hours bartenders, waiters, roomboys, housemen and
in the past five (5) years. Thus, he filed a complaint for stewards. During the lifetime of the CBA, Harbor View
the allowances that were not paid to him, and for Hotel, for reasons of economy and efficiency, decided
retirement benefits for his additional five (5) working to abolish the position of housemen and stewards who
years, based either on the company's Retirement Plan do the cleaning of the hotel’s public areas. Over the
or the Retirement Pay Law, whichever is applicable. Is protest of the Union, the Hotel contracted out the
he entitled to additional retirement benefits for the aforementioned job to the City Service Janitorial
additional service he rendered after age 65? (2013 Bar) Company, a bona fide independent contractor which
has a substantial capital in the form of janitorial tools,
A: No. He cannot be compulsorily retired twice in the same equipment, machineries and competent manpower. Is
company. the action of the Harbor View Hotel legal and valid?
(1994 Bar)
Q: A Collective Bargaining Agreement (CRA) between
Company A and its employees provides for optimal A: The action of Harbor View Hotel is legal and valid. The
retirement benefits for employees who have served the valid exercise of management prerogative, discretion and
company for over 25 years regardless of age, judgment encompasses all aspects of employment,
equivalent to one-and- one-half months pay per year of including the hiring, work assignments, working methods,
service based on the employee’s last pay. The CBA time, place and manner of work, tools to be used, processes
further provides that “employees whose services are to be followed, supervision of workers, working
terminated, except for cause, shall receive said regulations, transfer of employees, work supervision, lay-
retirement benefits regardless of age or service record off of workers, and the discipline, dismissal and recall of
with the company or to the applicable separation pay workers, except as provided for, or limited by special laws.
provided by law, whichever is higher." The Company,
due to poor business conditions, decided to cease Company policies and regulations, unless shown to be
operations and gave its employees the required one grossly oppressive or contrary to law, are generally
A: Yes. A bonus is an act of generosity granted by an Q: Inter-Garments Co. manufactures garments for
enlightened employer to spur the employee to greater export and requires its employees to render overtime
efforts for the success of the business and realization of work ranging from two to three hours a day to meet its
bigger profits. The granting of a bonus is a management clients' deadlines. Since 2009, it has been paying its
prerogative, something given in addition to what is employees on overtime an additional 35% of their
ordinarily received by or strictly due the recipient. Thus, a hourly rate for work rendered in excess of their regular
bonus is not a demandable and enforceable obligation, eight working hours.
except when it is made part of the wage, salary or
compensation of the employee. It may, therefore, be Due to the slowdown of its export business in 2012,
29
Labor Law and Social Legislation
Inter-Garments had to reduce its overtime work; at the e. Fiilipinos recruited by foreign-based employers abroad,
same time, it adjusted the overtime rates so that those on voluntary basis
who worked overtime were only paid an additional
25% instead of the previous 35%. To replace the NOTE: Under R.A. 10361 (Kasambahay Law), domestic
workers' overtime rate loss, the company granted a helpers who have rendered at least 1 month of service
one-time 5% across-the-board wage increase. regardless of the amount of their salary shall be covered by
the SSS. Premium payments or contributions shall be
Vigilant Union, the rank-and-file bargaining agent, shouldered by the employer. However, if the domestic
charged the company with Unfair Labor Practice on the worker is receiving a wage of Five thousand pesos
ground that (1) no consultations had been made on who (P5,000.00) and above per month, the domestic worker
would render overtime work; and (2) the unilateral shall pay the proportionate share in the premium payments
overtime pay rate reduction is a violation of Article 100 or contributions, as provided by law. (Sec. 30, R.A. 10361).
(entitled Prohibition Against Elimination or
Diminution of Benefits) of the Labor Code. Is the union Revised GSIS:
position meritorious? (2013 Bar)
Membership in the Government Service Insurance System
A: The allegation of ULP by the Union is not meritorious. (Art. 3, R.A. 8291) shall be compulsory for all employees
The selection as to who would render overtime work is a receiving compensation who have not reached the
management prerogative. compulsory retirement age, irrespective of employment
status, except members of the AFP, PNP, and contractuals
However, the charge of the Union on the diminution of
that have no employer-employee relationship with the
benefits (violation of Article 100 of the Labor Code) appears
agencies that they serve. Employees included are any
to be meritorious. Since three (3) years have already lapsed,
person receiving compensation while in the service of
the overtime rate of 35% has ripened into practice and
employers, which includes the national government, its
policy, and cannot anymore be removed. (Sevilla Trading v.
political subdivisions, branches, agencies or
Semana, 428 SCRA 239 [2004]) This is deliberate, consistent
instrumentalities including GOCCs and financial institutions
and practiced over a long period of time.
with original charters, constitutional commissions and
MARRIAGE BETWEEN EMPLOYEES OF COMPETITIOR- judiciary, whether by election or appointment irrespective
EMPLOYERS of status of appointment, including barangay and
sanggunian officials. (Sec. 2 (c) and (d); Sec. 3, Government
Q: A was working as a medical representative of RX Service Insurance System Act of 1997).
pharmaceutical company when he met and fell in love
with B, a marketing strategist for Delta Drug Company, Employees Compensation Act:
a competitor of RC. On several occasions, the
management of RX called A’s attention to the Coverage in the State Insurance Fund (Art. 168, Labor Code)
stipulation in his employment contract that requires shall be compulsory upon all employers and their
him to disclose any relationship by consanguinity or employees not over sixty (60) years of age; Provided, that
affinity with co-employees or employees of competing an employee who is over (60) years of age and paying
companies in light of a possible conflict of interest. A contributions to qualify for the retirement or life insurance
seeks your advice on the validity of the company policy. benefit administered by the System shall be subject to
What would be your advice? (2010 Bar) compulsory coverage. The employer or employee may
either belong to the public or private sector as covered by
A: The company policy is valid. However, it does not apply their own respective systems. (Art. 168, Labor Code).
to A. As A and B are not yet married, no relationship by
consanguinity or affinity exists between them. The case of SSS LAW
Duncan v. Glaxo Wellcome (438 SCRA 343 [2004]) does not
apply in the present case. Coverage and Exclusions (2015, 2007, 2009, 2010,
2004, 2000, 1997, 1995, 1993, 1989 Bar)
SOCIAL WELFARE LEGISLATION Q: State the respective coverage of (a) the Social
Security Law; x x x (1997 Bar)
31
Labor Law and Social Legislation
A: Yes, she can claim maternity benefit. Entitlement peace-keeping mission. Therefore, his death is
thereto is not dependent on the claimant’s being legally compensable.
married. (Sec. 14-A, Social Security Act of 1997).
Dependents, beneficiaries (1999, 1997, 1991 Bar)
GSIS LAW
Q: Pitoy Mondero was employed as a public school
Coverage and Exclusions (2015, 2009, 2005, 2004, teacher at the Marinduque High School from July 1,
1983 until his untimely demise on May 27, 1997. On
1999 Bar)
April 27, 1997, a memorandum was issued by the
Q: Odeck, a policeman, was on leave for a month. While school principal, which reads: "You are hereby
resting in their house, he heard two of his neighbors designated to prepare the MODEL DAM project, which
fighting with each other. Odeck rushed to the scene will be the official entry of our school in the
intending to pacify the protagonists. However, he was forthcoming Division Search for Outstanding
shot to death by one of the protagonists. Zhop, a Improvised Secondary Science Equipment for Teachers
housemaid, was Odeck's surviving spouse whom he had to be held in Manila on June 4, 1997. You are hereby
abandoned for another woman years back. When she instructed to complete this MODEL DAM on or before
learned of Odeck's death, Zhop filed a claim with the the scheduled date of the contest." Mondero complied
GSIS for death benefits. However, her claim was denied with his superior's instruction and constructed an
because: (a) when Odeck was killed, he was on leave; improvised electric microdam, which he took home to
and (b) she was not the dependent spouse of Odeck enable him to finish it before the deadline. On May 27,
when he died. 1997, while working on the MODEL DAM Project in his
house, he came to contact with a live wire and was
Resolve with reasons whether GSIS is correct in electrocuted. He was immediately brought to a clinic
denying the claim. (2005 Bar) for emergency treatment but was pronounced dead on
arrival. The death certificate showed that he died of
A: Yes, because under the law, a dependent is one who is a cardiac arrest due to accidental electrocution. Pepay
legitimate spouse living with the employee (Art. 167 [i], Palaypay (Pitoy Mondero's common-law wife for more
Labor Code). In the problem given, Zhop had been than twenty years) and a Pitoy Mordero Jr. (his only
abandoned by Odeck who was then living already with son) filed a claim for death benefits with the
another woman at the time of his death. Moreover, Odeck Government Service Insurance System (GSIS), which
was on leave when he was killed. The 24-hour duty rule was denied on the ground that Pitoy Mordero's death
does not apply when the policeman is on vacation leave. did not arise out of and in the course of employment
(Employees’ Compensation Commission v. CA, G.R. No. and therefore not compensable because the accident
121545, November 14, 1996). Taking together jurisprudence occurred in his house and not in the school premises. Is
and the pertinent guidelines of the ECC with respect to Pepay Palaypay entitled to file a claim for death
claim for death benefits, namely: benefits with the GSIS? Why?
a. That the employee must be at the place where his work A: The beneficiaries of a member of the GSIS are entitled to
requires him to be; the benefits arising from the death of said member. Death
b. That the employee must have been performing his benefits are called survivorship benefits under the GSIS Law.
official functions; and Pepay Palaypay is not entitled to receive survivorship
c. That the injury is sustained elsewhere, the employee benefits since she is not a beneficiary being a common-law
must have been executing an order for the employer. wife and not a legal dependent spouse. (Sec. 2(g), GSIS Act of
1997).
It is not difficult to understand then why Zhop’s claim was
denied by the GSIS (Tancinco v. GSIS, G.R. No. 132916, Is the cause of death of Pitoy Mordero (cardiac arrest
November 16, 2001). In the present case, Odeck was resting due to accidental electrocution in his house)
at his house when the incident happened; thus, he was not compensable? Why? (1999 Bar)
at a place where his work requires him to be. Although at
the time of his death Odeck was performing a police A: Yes. To be compensable under the GSIS Law, the death
function, it cannot be said that his death occurred elsewhere need not be work connected.
other than the place where he was supposed to be because
he was executing an order for his employer. NOTE: As long as the decedent-member was a) in service;
b) rendered 3 years of service and at least paid 36 monthly
Q: Luis, a PNP officer, was off duty and resting at home contributions within the five-year period immediately
when he heard a scuffle outside his house. He saw two preceding his death; or c) paid a total of at least 180
of his neighbors fighting and he rushed out to pacify monthly contributions prior to his death.
them. One of the neighbors shot Luis by mistake, which
resulted in Luis's death. Marian, Luis's widow, filed a Benefits
claim with the GSIS seeking death benefits. The GSIS
denied the claim on the ground that the death of Luis Q: Atty. CLM, a dedicated and efficient public official,
was the top executive of a government owned and
was not service-related as he was off duty when the
incident happened. Is the GSIS correct? (2015 Bar) controlled corporation (GOCC). While inspecting an
ongoing project in a remote village in Mindanao, she
A: No. The GSIS is not correct. Luis, a policeman, just like a suffered a stroke and since then had been confined to a
soldier, is covered by the 24-Hour Duty Rule. He is deemed wheelchair. At the time she stopped working because of
on round-the clock-duty unless on official leave, in which her illness in line of duty, Atty. CLM was only sixty years
case his death outside performance of official peace- old but she had been an active member of the GSIS for
keeping mission will bar death claim. In this case, Luis was thirty years without any break in her service record.
not on official leave and he died in the performance of a What benefits could she claim from the GSIS? Cite at
least five benefits. (2004 Bar)
Q: Luisito has been working with Lima Land for 20 RIGHT TO SELF-ORGANIZATION
years. Wanting to work in the public sector, Luisito
applied with and was offered a job at Livecor. Before Who may/may exercise the right (2014, 2012, 2010,
accepting the offer, he wanted to consult you whether 2009, 2004, 2003, 2002, 2000, 1999, 1996 Bar)
the payments that he and Lima Land had made to the
Social Security System (SSS) can be transferred or Q: Solar Plexus Bar and Night Club allowed by tolerance
credited to the Government Service Insurance System fifty (50) Guest Relations Officers (GRO) to work
(GSIS). What would you advice? (2014 Bar) without compensation in its establishment under the
direct supervision of its Manager from 8:00 p.m. to 4:00
A: Yes. Under RA 7699, otherwise known as the Portability a.m. every day, including Sundays and holidays. The
Law, one may combine his years of service in the private GROs, however, are free to ply their trade elsewhere at
sector represented by his contributions to the Social anytime but once they enter the premises of the night
Security System (SSS) with his government service and club, they are required to stay up to closing time. The
contributions to the GSIS. The contributions shall be GROs earned their keep exclusively from commissions
totalized for purposes of old-age, disability, survivorship for food and drinks, and tips from generous customers.
and other benefits in case the covered member does not In time, the GROs formed the Solar Ugnayan ng mga
qualify for such benefits in either or both Systems without Kababaihang Inaapi (SUKI), a labor union duly
totalization. registered with DOLE. Subsequently, SUKI filed a
petition for certification election in order to be
EMPLOYEE’S COMPENSATION – COVERAGE AND WHEN recognized as the exclusive bargaining agent of its
COMPENSABLE members. Solar Plexus opposed the petition for
certification election on the singular ground of absence
Q: Victor was hired by a local manning agency as a of employer-employee relationship between the GROs
seafarer cook on board a luxury vessel for an eight- on one hand and the night club on the other hand.
month cruise. While on board, Victor complained of
chronic coughing, intermittent fever, and joint pains. May the GROs form SUKI as a labor organization for
He was advised by the ship's doctor to take complete purposes of collective bargaining? Explain briefly.
bed rest but was not given any other medication. His (2012, 1999 Bar)
condition persisted but the degree varied from day to
day. At the end of the cruise, Victor went home to Iloilo A: The GROs may form SUKI as a labor organization for
and there had himself examined. The examination purposes of collective bargaining. There is an employer-
revealed that he had tuberculosis. employee relationship between the GROs and the night
club.
a. Victor sued for medical reimbursement, damages
and attorney's fees, claiming that tuberculosis was The Labor Code (in Article 138) provides that any woman
a compensable illness. Do you agree with Victor? who is permitted or suffered to work, with or without
Why or why not?
33
Labor Law and Social Legislation
compensation, in any night club, cocktail lounge, massage time basis. Third, he has less than ten (10) employees
clinic, bar or similar establishment, under the effective in the establishment. Which reason or reasons is/are
control or supervision of the employer for a substantial tenable? Explain briefly. (2002 Bar)
period of time as determined by the Secretary of Labor,
shall be considered as an employee of such establishment A: None. First, Mang Bally's shoe business is a commercial
for purposes of labor and social legislation. enterprise, albeit a service establishment. Second, the mere
fact that the workers are paid on a piece-rate basis does not
In the case at bar, it is clearly stated that the women once negate their status as regular employees. Payment by piece
they enter the premises of the night club would be under is just a method of compensation and does not define the
the direct supervision of the manager from 8:00 p.m. to essence of the relation. (Lambo v. NLRC, G.R. No. 111042,
4:00 a.m. everyday including Sundays and holidays. Such is October 26, 1999). Third, the employees' right to self-
indicative of an employer-employee relationship since the organization is not delimited by their number. The right to
manager would be exercising the right of control. self-organization covers all persons employed in
commercial, industrial and agricultural enterprises and in
Q: How does the government employees’ right to self religious, charitable, medical, or educational institutions
organization differ from that of the employees in the whether operating for profit or not. (Art. 243, Labor Code).
private sector? (1996 Bar)
Q: Philhealth is a government-owned and controlled
A: There is no substantial difference of the right of self corporation employing thousands of Filipinos. Because
organization between workers in the private sector and of the desire of the employees of Philhealth to obtain
those in the public sector. In the public sector, Executive better terms and conditions of employment from the
Order No. 180, the purpose of self-organization is stated as government, they formed the Philhealth Employees
"for the furtherance and protection of their interest." In the Association (PEA) and demanded Philhealth to enter
private sector, Art. 243 of the Labor Code states "for the into negotiations with PEA regarding terms and
purpose of collective bargaining", and "for the purpose of conditions of employment which are not fixed by law.
enhancing and defending their interests and for their Are the employees of Philhealth allowed to self-
mutual aid and protection." Furthermore, no less than the organize and form PEA and thereafter demand
Constitution itself guarantees that ALL workers have the Philhealth to enter into negotiations with PEA for
right to self-organization. (Sec. 3, Article 13, 1987 better terms and conditions of employment?(2014 Bar)
Constitution).
A: Yes. Employees of Philhealth are allowed to self-organize
Q: Do workers have a right not to join a labor under Section 8, Article III and Section 3, Article XIII of the
organization? (2000 Bar) Constitution which recognize the rights of all workers to
self-organization. They cannot demand, however, for better
A: Yes. The constitutional right to self-organization has two terms and conditions of employment for the same are fixed
aspects, the right to join or form labor organizations and the by law (Art. 244, Labor Code), besides, their salaries are
right not to join said organization (Victoriano v. Elizalde standardized by Congress. (Art. 276, Labor Code).
Rope Worker’s Union, G.R. No. L-25246, September 12, 1974).
Moreover, if they are members of a religious group whose BARGAINING REPRESENTATIVE
doctrine forbids union membership, their right not to be
compelled to become union members has been upheld. Q: The Ang Sarap Kainan Workers Union appointed
However, if the worker is not a "religious objector" and Juan Javier, a law student, as bargaining representative.
there is a union security clause, he may be required to join Mr. Javier is neither an employee of Ang Sarap Kainan
the union if he belongs to the bargaining unit. (Reyes v. Company nor a member of the union. Is the
Trajano, G.R. No. 84433, June 2, 1992). appointment of Mr. Javier as a bargaining
representative in accord with law? Explain. (2000 Bar)
Q: Do the following workers have the right to self-
organization? Reasons/basis: A: Yes, the law does not require that the bargaining
representative be an employee of the company nor an
a. Employees of non-stock, non-profit organizations? officer or member of the union. (Art 212 (j), Labor Code).
b. Alien employees? (2000)
Determination of representation status (2016, 2014,
A: 2009, 2007, 2006, 2005, 2004, 1999, 1998, 1996, 1993,
a. Even employees of non-stock non-profit organizations 1992, 1990 Bar)
have the right to self-organization. This is explicitly
provided for in Art. 243 of the Labor Code. A possible Q: The modes of determining an exclusive bargaining
exception, however, are employee members of non- agreement (agent) are:
stock, non-profit cooperatives.
b. ALIEN EMPLOYEES with valid work permits may a. voluntary recognition
exercise the right to self-organization on the basis of b. certification election
parity or reciprocity, that is, if Filipino workers in the c. consent election
aliens' country are given the same right. (Art. 269, Labor
Code). Explain briefly how they differ from one another.
(2006, 2005, 2000, 1989 Bar)
Q: Mang Bally, owner of a shoe repair shop with only
nine (9) workers in his establishment, received A:
proposals for collective bargaining from the Bally Shoe
Union. Mang Bally refused to bargain with the workers a. There is voluntary recognition when in an unorganized
for several reasons. First, his shoe business is just a establishment with only one legitimate labor
service establishment. Second, his workers are paid on organization, the employer voluntarily recognizes the
a piecework basis (i.e., per shoe repaired) and not on a representation status of such a union. Within thirty
35
Labor Law and Social Legislation
workers of MNO Company considering that it garnered aid benefits and that the deduction was made pursuant
the highest number of votes among the contending to a board resolution of the directors of the union. Can
unions? Why or why not? Rogelio object to the deduction? Explain briefly. (2002
Bar)
A: No. To be certified as bargaining agent, the vote required
is majority of the valid votes cast. There were 396 valid A: Yes. In order that the special assessment (death aid
votes cast, the majority of which is 199. Since Union B got benefit) may be upheld as valid, the following requisites
only 71 votes, it cannot be certified as the sole and exclusive must be compiled with: (1) Authorization by a written
bargaining agent of MNO’s rank-and- file workers. resolution of the majority of all the members at the general
membership meeting duly called for the purpose; (2)
b. May the management or lawyer of MNO Company Secretary's record of the meeting; and (3) Individual
legally ask for the absolute termination of the written authorization for the check-off duly signed by the
certification election proceedings because 180 of the employee concerned. [ABS-CBN Supervisors Employees
workers — a clear plurality of the voters — have Union Members v. ABS-CBN Broadcasting Corp, and Union
chosen not to be represented by any union? Reasons. Officers, G.R. No. 106518, March 11, 1999; Art. 241(n) and (o),
Labor Code] In the problem given, none of the above
A: No, because 216 workers want to be represented by a requisites were complied with by the union. Hence, Rogelio
union as bargaining agent. Only 180 workers opted for No can object to the deduction made by the union for being
Union. Hence, a clear majority is in favor of being invalid.
represented by a union. NOTE: Substantial compliance of the requirements is not
enough in view of the fact that the special assessment will
c. If you were the duly designated election officer in diminish the compensation of union members. (Palacol v.
this case, what would you do to effectively achieve the Ferrer-Calleja, G.R. No. 85333, February 26, 1990).
purpose of certification election proceedings? Discuss.
(2009 Bar) Q: Atty. Facundo Veloso was retained by Welga Labor
Union to represent it in the collective bargaining
A: I will conduct a run-off election between the labor negotiations. It was agreed that Atty. Veloso would be
unions receiving the two highest number votes. To have a paid in the sum of P20, 000.00 as attorney's fees for his
run-off election, all the contending unions (3 or more assistance in the CBA negotiations. After the conclusion
choices required) must have garnered 50% of the number of the negotiations Welga Labor Union collected from
of votes cast. In the present case, there are four (4) its individual members the sum of P100.00 each to pay
contending unions and they garnered 216 votes. There for Atty. Veloso's fees and another sum of P100.00 each
were 400 vote cast. The votes garnered by the contending for services rendered by the union officers. Several
unions is even more than 50% of the number of vote cast. members of the Welga Labor Union approached you to
Hence, a run-off election is in order. seek advice on the following matters.
Q: The Construction and Development Corporation a. Whether or not the collection of the amount assessed
has a total of one thousand and one hundred (1,100) on the individual members to answer for the attorney's
employees. In a certification election ordered by the fees was valid?
Bureau of Labor Relations to elect the bargaining
representative of the employees, it was determined A: The assessment for attorney’s fees is not valid. The Labor
that only one thousand (1,000) employees are eligible Code prohibits the payment of attorney’s fees when it is
voters. In the election a total of nine hundred (900) effected through forced contributions from the workers
ballots was cast. There were fifteen (15) spoiled from their own funds as distinguished from the union funds
ballots and five (5) blank ballots. A total of four [Art. 222(b), Labor Code]. The obligation to pay the
hundred (400) votes was cast for ABC Labor Union, a attorney’s fees belongs to the union and cannot be shunted
total of two hundred forty (240) votes was cast in favor to the workers as their direct responsibility. (Bank of the
of JVP Labor Union, and a total of two hundred and Philippine Islands Employees’ Union vs. NLRC, G.R. Nos.
forty (240) votes was in favor of RLG Labor 69746-47, March 31, 1989).
Organization. Is there a valid certification election?
Why? (1990 Bar) b. Whether or not the assessment of P100.00 from the
individual members of the Welga Labor Union for
A: There is a valid certification election. In the facts of the services rendered by the union officers in the CBA
case in question, there is no bar to the holding of the negotiations was valid? (1997 Bar)
certification election.
A: The assessment for negotiation fees is not valid. The
Labor Code prohibits negotiation fees and other similar
The Labor Code provides (in Art. 256) that to have a valid
charges of any kind arising from any collective bargaining
certification election, at least a majority of all eligible
voters in the bargaining unit must have cast their votes in negotiations to be imposed on any individual member of the
contracting union. (Art. 222(b), Labor Code)
the election. In the facts of the case in the question, 1, 000
employees are eligible voters and 900 voters, which is very
NOTE: Special assessments may be allowed like attorney’s
much more than the majority (501) of the eligible voters
fees and negotiation fees provided that there be strict
cast their votes.
compliance with the requisites of a valid special assessment.
(Art. 241 (n) and (o), Labor Code).
RIGHTS OF LABOR ORGANIZATION
Q: What requisites must a Union comply with before it
Check off, Assessment, Agency fees (2002, 2001, 1997 can validly impose special assessments against its
Bar) members for incidental expenses, attorney's fees,
representation expenses and the like? (2001, 2002 Bar)
Q: The union deducted P20.00 from Rogelio's wages for
January. Upon inquiry he learned that it was for death
The same is also supported by the principle of holdover, a. Will the representation issue that has arisen
which states that despite the lapse of the formal effectivity involving the national union PAFLU, to which the duly
of the CBA, the law stills considers the same as continuing registered local union JEU is affiliated, bar collective
in force and effect until a new CBA shall have been validly bargaining negotiation with J & J? Explain briefly.
executed (MERALCO v. Hon. Sec. of Labor, 337 SCRA 90
[2000] citing National Congress of Unions in the Sugar A: The representation issue that has arisen involving the
Industry of the Philippines v. Ferrer-Calleja, 205 SCRA 478 national union PAFLU should not bar collective bargaining
[1992]). The terms and conditions of the existing CBA negotiation with J and J. It is the local union JEU that has the
remain under the principle of CBA continuity. right to bargain with the employer J and J, and not the
national union PAFLU. It is immaterial whether the
representation issue within PAFLU has been resolved with
Q: What jurisdictional pre-conditions must be present finality or not. Said squabble could not possibly serve as a
to set in motion the mechanics of a collective
bar to any collective bargaining since PAFLU is not the real
bargaining? (1996 Bar)
party-in interest to the talks; rather, the negotiations are
confined to the corporation and the local union JEU. Only
A: To set in motion the mechanics of collective bargaining, the collective bargaining agent, the local union JEU,
these jurisdictional pre-conditions must be present, possesses the legal standing to negotiate with the
namely: corporation. A duly registered local union affiliated with a
1. The employees in a bargaining unit should form a labor national union or federation does not lose its legal
organization; personality or independence. (Adamson and Adamson, Inc. v.
2. The labor organization should be a legitimate labor The Court of Industrial Relations and Adamson and Adamson
organization; Supervising Union (FFW), G.R. No. L-35120, January 30,1984).
3. As such legitimate labor organization, it should be
recognized or certified as the collective bargaining
b. Can the Secretary of Labor decide the labor dispute
representative of the employees of the bargaining unit; by awarding the JEU CBA Proposals as the Collective
and
Bargaining Agreement of the parties? Explain briefly.
4. The labor organization as the collective bargaining
(1999 Bar)
representative should request the employer to bargain
collectively. (See Arts. 243, 234, 255 and 250 of the Labor
A: Yes, the Secretary of Labor can decide the labor dispute
Code). by awarding the JEU CBA proposals as the Collective
Bargaining Agreement between the parties because when
Q: What is an appropriate bargaining unit for purposes the Secretary of Labor (under Art. 263 [g]) assumes
of collective bargaining? (1999 Bar) jurisdiction over a labor dispute causing or likely to cause a
strike or lockout in an industry indispensable to the
37
Labor Law and Social Legislation
national interest, the Secretary of Labor exercises the administrative proceeding. During the pendency of such
power of compulsory arbitration over the labor dispute, administrative proceeding, the running of the period for
meaning, that as an exception to the general rule, the prescription of the criminal offense herein penalized shall
Secretary of Labor now has the power to set or fix wages, be interrupted. The final judgment in the administrative
rates of pay, hours of work or terms and conditions of proceeding shall not be binding in the criminal case nor be
employment by determining what should be the CBA of the considered as evidence of guilt but merely as proof of
parties. (See Divine Word University v. Secretary of Labor, G.R. compliance of the requirements set forth by law. (Article
No. 91915, September 11, 1992) 247, Labor Code)
ART. 249. Unfair labor practices of labor organizations. It The collection of agency fees in an amount equivalent to
shall be unfair labor practice for a labor organization. Its union dues and fees from employees who are not union
officers, agents or representatives: members is recognized under Article 248(e) of the Labor
Code. The union may collect such fees even without any
a. To restrain or coerce employees in the exercise of their written authorization from the non-union member
rights to self-organization. However, a labor organiza- employees, if said employees accept the benefits resulting
tion shall have the right to prescribe its own rules with from the CBA. The legal basis of agency fees is quasi-
respect to the acquisition or retention of membership; contractual (Del Pilar Academy v. Del Pilar Academy
b. To cause or attempt to cause an employer to dis- Employees Union, 553 SCRA 590 [2008]).
criminate against an employee, including
discrimination against an employee with respect to Q: Pablo works as a driver at the National Tire Company
whom membership in such organization has been (NTC). He is a member of the Malayang Samahan ng
denied or to terminate an employee on any ground Manggagawa sa NTC, the exclusive rank-and-file
other than the usual terms and conditions under which collective bargaining representative in the company.
membership or continuation of membership is made The union has a CBA with NTC which contains a union
available to other members; security and a check-off clause. The union security
c. To violate the duty, or refuse to bargain collectively clause contains a maintenance of membership
with the employer, provided it is the representative of provision that requires all members of the bargaining
the employees; unit to maintain their membership in good standing
39
Labor Law and Social Legislation
with the union during the term of the CBA under pain of A: LFEU’s claim that Libra Films committed ULP based on
dismissal. The check-off clause on the other hand its violation of the CBA is not correct. For violation of a CBA
authorizes the company to deduct from union to constitute ULP, the violation must be violation of its
members' salaries defined amounts of union dues and economic provisions. Moreover, said violation must be
other fees. Pablo refused to issue an authorization to gross and flagrant. Based on the allegation of the union,
the company for the check-off of his dues, maintaining what was violated was the maintenance of membership
that he will personally remit his dues to the union. clause which was a political or representational provision;
hence, no ULP was committed. (BPI Employees Union-Davao
(a) Would the NTC management commit unfair labor City v. BPI, 702 SCRA 42).
practice if it desists from checking off Pablo's union
dues for lack of individual authorization from Pablo? By Labor organizations
A. No. Under Article 9481, violation of the Collective Q: A labor union lawyer opined that a labor
Bargaining Agreement, to be an unfair labor practice, must organization is a private and voluntary organization;
be gross in character. It must be a flagrant and malicious hence, a union can deny membership to any and all
refusal to comply with the economic provisions of the CBA. applicants. Is the opinion of counsel in accord with law?
[1998 Bar]
ALTERNATIVE ANSWER:
A: No, the opinion of counsel is not in accord with law. The
No. Check-offs in the truth impose an extra burden on the Labor Code [in Article 249 (a and b)] provides that a labor
employer in the form of additional administrative and organization has the light to prescribe its own rules for the
bookkeeping costs. It is a burden assumed by management acquisition or retention of membership, but it is an unfair
at the instance of the union and for its benefit, in order to labor practice act for a labor organization to restrain or
facilitate the collection of dues necessary for the latter’s life coerce employees in the exercise of their right to self-
and sustenance. But the obligation to pay union dues and organization. Thus, a labor organization cannot
agency fees obviously devolves not upon the employer, but discriminate against any employee by denying such
the individual employee. It is a personal obligation not employee membership in the labor organization on any
demandable from the employer upon default or refusal of ground other than the usual terms and conditions under
the employee to consent to a check-off. The only obligation which membership or continuation of union membership is
of the employer under a check-off is to effect the deductions made available to other members.
and remit the collections to the union. (Holy Cross of Davao
College v. Joaquin, G.R. No. 110007 [1996]) PEACEFUL CONCERTED ACTIVITIES
(b) Can the union charge Pablo with disloyalty for BY LABOR ORGANIZATION
refusing to allow the check off of his union dues and, on
this basis, ask the company to dismiss him from Strike (2010, 2008, 2002, 2000, 1998 Bar)
employment? (2013 Bar)
A. No. The “check-off clause” in the CBA will not suffice. The Q: The day following the workers' voluntary return to
law prohibits interference with the disposition of one’s work, the Company Production Manager discovered an
salary. The law requires “individual written authorization” unusual and sharp drop in workers' output. It was
to deduct union dues from Pablo’s salaries. For as long as he evidently clear that the workers are engaged in a work
pays union dues, Pablo cannot be terminated from slowdown activity. Is the work slowdown a valid form
employment under the union security clause. As a matter of of strike activity? (1998 Bar]
fact, filing a complaint against the union before the
Department of Labor for forcible deduction from salaries A: A work slowdown is not a valid form of strike activity. If
does not constitute acts of disloyalty against the union. workers are to strike, there should be temporary stoppage
(Tolentino v. Angeles, 52 O.G. 4262) of work by the concerted action of employees as a result of
an industrial or labor dispute (See Article 212(o) of the
Q: The Collective Bargaining Agreement (CBA) between Labor Code)
Libra Films and its union, Libra Films Employees' Union
(LFEU), contains the following standard clauses: Q: Eaglestar Company required a 24-hour operation
and embodied this requirement in the employment
1. Maintenance of membership; contracts of its employees. The employees agreed to
2. Check off for union dues and agency fees; and work on Sundays and Holidays if their work schedule
3. No strike, no lock-out. required them, to do so for which they would be paid
additional compensation as provided by law. Last
While Libra Films and LFEU are in re-negotiations for March 2000, the union filed a notice of strike. Upon
an extension of the CBA, LFEU discovers that some of its Eaglestar’s petition, the Secretary of Labor certified
members have resigned from the union, citing their the labor dispute to the NLRC for compulsory
constitutional right to organize (which includes the arbitration. On April 20, 2000 (Maundy Thursday),
right NOT to organize). LFEU demands that Libra Films while conciliation meetings were pending, the union
institute administrative proceedings to terminate officers and members who were supposed to be on
those union members who resigned in violation of the duty did not report for work. Neither did they report
CBA's maintenance of membership clause. Libra Films for work on April 21 (Good Friday) and on April 22
refuses, citing its obligation to remain a neutral party. (Black Saturday), disrupting the factory’s operations
As a result, LFEU declares a strike and after filing a and causing it huge losses. The union denied it had
notice of strike and taking a strike vote, goes on strike. gone on a strike because the days when its officers and
The union claims that Libra Films grossly violated the members were absent from work were legal holidays.
terms of the CBA and engaged in unfair labor practice. Is the contention of the union correct? Explain briefly.
Are LFEU's claims correct? Explain. (2015 Bar) (2002 Bar)
41
Labor Law and Social Legislation
b. A: Yes. The conduct of the strike action without a valid because of the refusal of the company to
strike vote violates Art. 263 (f) - In every case, the discuss the economic provisions of the CBA. Rule on
union or the employer shall furnish the [DOLE] the the contention.
results of the voting at least seven days before the
intended strike...” to enable the DOLE and the parties A: The Union’s contention is wrong. A strike may be
to exert the last effort to settle the dispute without declared only in cases of deadlock in collective bargaining
strike action. negotiations and unfair labor practice [Article 263(c) Labor
Code; Section 1, Rule V, NCMB Manual of Procedures]
Q: A is a member of the labor union duly recognized as
the sole bargaining representative of his company. The proposal of the company to discuss political provisions
Due to a bargaining deadlock, 245 members of the pursuant to the ground rules agreed upon does not
500-strong union voted on March 13, 2010 to stage a automatically mean that the company refuses to discuss
strike. A notice of strike was submitted to the National the economic provisions of the CBA, or that the company
Conciliation and Mediation Board on March 16, 2010. was engaged in “surface bargaining” in violation of its duty
Seven days later or on March 23, 2010, the workers to bargain, absent any showing that such tend to show that
staged a strike in the course of which A had to leave the company did not want to reach an agreement with the
and go to the hospital where his wife had just delivered Union. In fact, there is no deadlock to speak of in this case.
a baby. The union members later intimidated and
barred other employees from entering the work The duty to bargain does not compel either party to agree
premises, thus paralyzing the business operations of to a proposal or require the making of a concession. The
the company. parties’ failure to agree which to discuss first on the
bargaining table did not amount to ULP for violation of the
A was dismissed from employment as a consequence of duty to bargain.
the strike. Was the strike legal? Explain (2010 Bar)
Besides, the mass leave conducted by the union members
A: No. The strike was not legal due to the union’s failure to
failed to comply with the procedural requirements for a
satisfy the required majority vote of union membership
valid strike under the Rules, without which, the strike
(251 votes), approving the conduct of a strike [See Art.
conducted taints of illegality
263(f), Labor Code; Section 11, Rule XXII, Dept. Order No. 40-
.
03]. Also, the strike was illegal due to the non-observance
c. Union member AA, a pastor who headed the prayer
of the 30-day cooling off period by the union [Art. 263(c),
rally, was served a notice of termination by
Labor Code]. rights of employees to self-organization (Club
management after it filed the petition for
Filipino, Inc. v. Bautista, 592 SCRA 471 [2009]).
assumption of jurisdiction. May the company
validly terminate AA? Explain. (2010 Bar)
Q: On the first day of collective bargaining negotiations
between rank-and-file Union A and B Bus Company, the
former proposed a P45/day increase. The company A: No. The company cannot terminate AA because the
insisted that ground rules for negotiations should first Labor Code provides mere participation of a worker in a
be established, to which the union agreed. After strike shall not constitute sufficient ground for termination
agreeing on ground rules on the second day, the union of his employment.
representatives reiterated their proposal for a wage
increase. When company representatives suggested a Valid versus Illegal strikes (2010, 2007, 2004, 2003,
discussion of political provisions in the Collective 2000, 1994 Bar)
Bargaining Agreement as stipulated in the ground
rules, union members went on mass leave the next day Q: Discuss the legal requirements of a valid strike.
to participate in a whole-day prayer rally in front of the (2007 Bar)
company building.
A. The legal requirements of a valid strike are as follows:
a. The company filed a petition for assumption of
jurisdiction with the Secretary of Labor and 1. No labor union may strike on grounds involving inter-
Employment. The Union opposed the petition, union and intra-union disputes.
arguing that it did not intend to stage a strike. 2. In cases of bargaining deadlocks, the duly certified or
Should the petition be granted? Explain. recognized bargaining agent may file a notice of strike
with the Department of Labor and Employment at least
A: Yes. There was a strike. What the union engaged in was 30 days before the intended date thereof. In cases of
actually a “work stoppage” in the guise of a protest rally. unfair labor practice, the period of notice shall be 15
Article 212(o) of the Labor Code defines strike as a days and in the absence of a duly certified or recognized
temporary stoppage of work by the concerted action of bargaining agent, the notice of strike may be filed by
employees as a result of an industrial or labor dispute. The any legitimate labor organization in behalf of its
fact that the conventional term "strike” was not used by members. However, in case of dismissal from
the striking employees to describe their common course employment of union officers duly elected in
of action is inconsequential. What is controlling is the accordance with the union constitution and by-laws,
substance of the situation, and not its appearance. The which may constitute union busting where the
term "strike” encompasses not only concerted work existence of the union is threatened, the 15-day
stoppages, but also slowdowns, mass leaves, sit-downs, cooling-off period shall not apply and the union may
attempts to damage, destroy or sabotage plant equipment take action immediately.
and facilities, and similar activities (Santa Rosa Coca- Cola 3. A decision to declare a strike must be approved by a
Plant Employees Union, Donrico v. Sebastian, et al. v. Coca- majority of the total union membership in the
Cola Bottlers Phils., Inc., 512 SCRA 437 [2007]). bargaining unit concerned, obtained by secret ballot in
meetings or referenda called for that purpose.
b. The Union contended that assuming that the mass 4. In every case, the union shall furnish the Department of
leave will be considered as a strike, the same was Labor and Employment the voting at least seven days
43
Labor Law and Social Legislation
Besides, the mass leave conducted by the union members for a valid cause? Was due process observed? (2004
failed to comply with the procedural requirements for a Bar)
valid strike under the Rules, without which, the strike
conducted taints of illegality. A: There is a valid cause for the dismissal of FX, but due
process was not observed.
Picket (2016, 2004, 2000, 1992, 1991 Bar)
Peaceful picketing is part of the constitutional freedom of
Q: Following a deadlock in collective bargaining, the AC- speech. The right to free speech, however, has its limits, and
AC Labor Union filed a notice of strike with the picketing as a concerted activity is subject to the same
Department of Labor and Employment and, thirty (30) limitations as a strike, particularly as to lawful purpose and
days later, went on strike and picketed the gates of the lawful means. But it does not have to comply with the
UP-UP Company, paralyzing its operations. The procedural requirements for a lawful strike, like the notice
company is engaged in telecommunications, including of strike or the strike vote. However in the problem given,
the supply of cellular phone equipment, with a picketing became illegal because of unlawful means, as
nationwide network of facilities. In a petition with the barricades blocked the employees' entry to the mill, and
DOLE, the company questioned the legality of the strike violence, ensued when FX threw stones at the guards. There
and asked for compulsory arbitration. The Secretary of was thus, valid cause for the dismissal of FX, however, due
the DOLE certified the dispute to the NLRC for process was not observed because SSI did not comply with
compulsory arbitration and ordered the company to the twin requirements of notice and hearing.
readmit the workers pending the arbitration. The
workers returned and were readmitted by the Q: The workers engaged in picketing activity in the
company but five (5) technicians were temporarily re- course of a strike.
assigned to the warehouse while five (5) others were
reinstated on payroll only. The company justified its a. Will picketing be legal if non-employees of the
strike-bound employer participate in the activity?
acts as an exercise of management prerogative.
A. Yes, the picketing is legal even though non-employees
During the strike, may the striking union picket the
join it. Picketing is a form of the exercise of freedom of
company's outside outlets although they are not
speech. Picketing, provided it is held peacefully, is a
company-owned but independent dealers? (1991 Bar)
constitutional right. The disputants in a legal dispute need
not be employer-employee of each other. [De Leon v.
A: Peaceful picketing conducted by employees in a strike National Labor Union, 100 Phil. 789 (1957); Cruz v. Cinema
area during any labor controversy is given protection by Stage, etc.101 Phil. 1259 (1957)].
the Labor Code.
b. Can picketing activity be curtailed when illegal acts
Thus, if the place being picketed is a strike area which is are committed by the picketing workers in the
defined by the Labor Code as “the establishment, course of the activity? (2000 Bar)
warehouses, depots, plants or offices, including the sites or
premises used as runaway shops, of the employer struck A: No, the picketing activity itself cannot be curtailed. What
against, as well as the immediate vicinity actually used by can be curtailed are the illegal acts being done in the course
picketing strikers in moving to and fro before all points of of the picket. However, if this is a “national interest" case
entrance to and exit from said establishment,” then the under Art. 263(g), the strike or work stoppage may be
picketing is protected, if it is peaceful. stopped by the power of assumption of jurisdiction or
certification of the case to the National Labor Relations
In the question given, however, since the striking union is Commission. [Nagkakaisang Mangagawa sa Cuison Hotel v.
picketing the company's outside outlets who are not Libron, 124 SCRA 448 (1983); Free telephone Workers Union
company owned but independent dealers, the picketing is u. PLOT. 113 SCRA 662 (1982)].
not in a strike area, thus the picketing is not protected by
the Code. BY EMPLOYER
Q: President FX, head of a newly formed labor union Lockout
composed of 1/3 of the total number of rank-and-file
employees in Super Stores, Inc., agitated his fellow Q: Fifty percent (50%) of the employees of Grandeur
employees to demand from management pay increases Company went on strike after negotiations for a
and overtime pay. His supervisor summoned him to collective bargaining agreement ended in a deadlock.
explain his tardiness and refusal to obey regulations. Grandeur Company, being a public utility, immediately
Feeling threatened, he gathered 20 of his members and petitioned the Secretary of Labor and Employment to
staged a 2-day picket in front of the shopping mall. assume Jurisdiction and certify the case to the NLRC. On
Security staff arrived and dismantled the placards and the fourth day of the strike and before the DOLE
barricades blocking the employees' entry to the mall. In Secretary could assume jurisdiction or certify the case
retaliation, FX threw stones at the guards, but the other to the NLRC, the strikers communicated in writing their
striking workers just stood by watching him. Seven offer to return to work. Grandeur Company refused to
days after the picket, FX who had gone absent without accept the offer of the strikers because it realized that
leave returned to the mall and announced that he had they were not at all capable of paralyzing the
filed a complaint for illegal dismissal and unfair labor operations of the company. The strikers accused
practice against SSI. Grandeur Company of illegal lockout.
SSI learned that FX's group was not registered. No Has Grandeur Company committed the act charged by
strike vote and strike notice were filed prior to the refusing to accept the offer of the strikers to return to
picket. The guards were told not to allow FX entry in the work? Discuss fully. (1995 Bar)
company premises as management considered him
effectively terminated. Other union members were A: There is no law that prohibits strikers to decide not to
accepted back to work by SSI. Was the dismissal of FX continue with a strike that they have started.
45
Labor Law and Social Legislation
All these activities are at present indispensable to the indispensable to the national interest. Moreover, the
national interest. grounds relied upon by SDS, to wit: “eyesore and disruptive
of its business”, betrays the weakness of its case.
b. Were the temporary reassignment and payroll
reinstatement valid? (1991 Bar) Q: Several employees and members of Union A were
terminated by Western Phone Co. on the ground of
A: No. The temporary re-assignment and payroll rein- redundancy. After complying with the necessary
statement are not valid. According to the Labor Code, requirements, the Union staged a strike and picketed
when the Secretary of Labor assumes Jurisdiction, such the premises of the company. The management then
assumption has the effect of automatically enjoining the filed a petition for the Secretary of Labor and
strike that is taking place and all striking employees shall Employment to assume jurisdiction over the dispute.
immediately return to work as the employer shall Without the benefit of a hearing, the Secretary issued
immediately resume operations and readmit all workers an Order to assume jurisdiction and for the parties to
under the same terms and conditions prevailing before the revert to the status quo ante litem.
strikes.
a. Was the order to assume jurisdiction legal? Explain.
Q: In a labor dispute, the Secretary of Labor issued an
"Assumption Order" Give the legal implications of A: Yes. The Secretary of Labor and Employment has
such an order. (2003 Bar) plenary power to assume jurisdiction under Article 263(g)
of the Labor Code. When in his opinion, there exists a labor
A: Under Art. 263(g) of the Labor Code, such assumption dispute causing or likely to cause a strike or lockout in an
shall have the effect of automatically enjoining the
industry indispensable to the national interest, the
intended or impending strike or lockout as specified in the
Secretary of Labor may assume jurisdiction over the
assumption order. If one had already taken place at the dispute and decide it or certify it to the NLRC for
time of assumption, all striking or lockout employees shall
compulsory arbitration (Art. 263[g], Labor Code). This
immediately return to work and the employer shall
extraordinary authority given to the Secretary of Labor is
immediately resume operations and re-admit all workers aimed at arriving at a peaceful and speedy solution to
under the same terms and conditions prevailing before the
labor disputes, without jeopardizing national interests
strike or lockout. The Secretary of Labor and Employment (Steel Corporation v. SCP Employees Union, 551 SCRA 594
may seek the assistance of law enforcement agencies to
[2008]). Such assumption shall have the effect of
ensure compliance with this provision as well as with such
automatically enjoining an impending strike or lockout, or
orders as he may issue to enforce the same. The mere an order directing immediate return to work and resume
issuance of an assumption order by the Secretary of Labor
operations, if a strike already took place, and for the
automatically carries with it a return-to-work order, even employer to re-admit all employees under the same terms
if the directive to return to work is not expressly stated in
and conditions prevailing before the strike or lockout [Art.
the assumption order. Those who violate the foregoing
263(g), Labor Code; Sec. 15, Rule XXII, Dept. Order No. 40-G-
shall be subject to disciplinary action or even criminal 03]
prosecution. Under Art. 264 of the Labor Code, no strike or
lockout shall be declared after the assumption of
b. Under the same set of facts the Secretary instead
jurisdiction by the Secretary.
issued an Order directing all striking workers to
return to work within 24 hours, except those who
Q: Savoy Department Store (SDS) adopted a policy of
were terminated due to redundancy. Was the
hiring salesladies on five-month cycles. At the end of a
Order legal? Explain. (2010 Bar)
saleslady’s five-month term, „ another person is hired
as replacement. Salesladies attend to store customers,
A: No. The Secretary of Labor’s order will be inconsistent
wear SDS uniforms, report at specified hours, and are
with the established policy of the State of enjoining the
subject to SDS workplace rules and regulations. Those parties from performing acts that undermine the
who refuse the 5-month employment contract are not
underlying principles embodied in Article 263(g) of the
hired.
Labor Code.
The day after the expiration of her 5-month
engagement, Lina wore her SDS white and blue In this case, excepting the employees terminated due to
uniform and reported for work but was denied entry redundancy from those who are required to return- to-
into the store premises. Agitated, she went on a hunger work, which was the very labor dispute that sparked the
strike and stationed herself in front of one of the gates union to strike, the Secretary of Labor comes short of his
of SDS. Soon thereafter, other employees whose 5- duty under Article 263(g) to maintain status quo or the
month term had also elapsed joined Lina’s hunger terms and conditions prevailing before the strike. In fact,
strike. the Secretary could be accused of disposing of the parties’
labor dispute without the benefit of a hearing, in clear
The owner of SDS considered the hunger strike staged derogation of due process of law.
by Lina, et al., an eyesore and disruptive of SDS’
business. He wrote the Secretary of Labor a letter
asking him to assume jurisdiction over the dispute and
enjoin the hunger “strike”. What answer will you give if Jurisdiction and Remedies
you were the Secretary of Labor? (2008 Bar)
A: I will deny the letter-request of SDS because its business LABOR ARBITER
is not indispensable to the national interest. Although the
Secretary of Labor has a wide latitude of discretion in Jurisdiction (2015, 2014, 2008, 2001, 1995, 1991, 1990
deciding whether or not to assume jurisdiction over a labor Bar)
dispute or certify the same to the NLRC for compulsory
arbitration, SDS’s business is clearly not one which is
47
Labor Law and Social Legislation
a. Is NNN's remedy correct? Why or why not? forthwith may cause grave or irreparable damage
to any party;
A: The NLRC has no jurisdiction. As to PNN, there is no c. Injunction in strikes or lockouts under Art. 264 of
employer-employee relationship between itself and NNN; the Labor Code;
hence, the NLRC cannot hear and resolve their dispute d. Contempt cases;
(Reasonable Causal Connection Rule). As to Anya, the e. Claims arising out of an employer employee
injunctive power of the NLRC is ancillary in nature; hence, relationship or by virtue of any law or contract
it requires a principal case, which is absent. Besides, the involving Filipino workers for overseas
dispute between her and PNN is not resolvable solely deployment including claims for actual, moral,
through the application of Labor Code, other labor statutes, exemplary and other forms of damage.
CBA or employment contract. (Reference to Labor Law
Rule) 2. Exclusive Appellate Jurisdiction
a. All cases decided by the Labor Arbiters [Sec.
b. What are the grounds for a labor injunction to 217(b), Labor Code]
issue? b. Cases decided by the Regional Offices of DOLE in
the exercise of its adjudicatory function. (Art. 129,
A: The NLRC may issue an injunctive writ to enjoin an illegal Labor Code)
activity under Art. 264 (old) of the Labor Code; as an
ancillary remedy to avoid irreparable injury to the rights of BUREAU OF LABOR RELATIONS (BLR)
a party in an ordinary labor dispute pursuant to Rule X,
2011 NLRC Rules of Procedure, as amended; and to correct Jurisdiction (2001, 1998, 1996 Bar)
the Labor Arbiter’s grave abuse of discretion pursuant to
Rule XII of the 2011 NLRC Rules of Procedure, as amended. Q: Can the Bureau of Labor Relations certify a union as
Moreover, for labor injunction to issue, it must be proven the exclusive bargaining representative after showing
under Art. 218(e) Labor Code: proof of majority representation thru union
membership cards without conducting an election?
a. That the prohibited or unlawful acts have been (1998 Bar)
threatened and will be committed and will be
continued unless restrained; A: The Bureau of Labor Relations cannot certify a union as
b. That substantial and irreparable injury to the the exclusive collective bargaining representative after
complainant’s property will follow; showing of proof of majority representation thru union
c. That greater injury will be inflicted upon complainant membership cards without conducting a certification
by the denial of relief than will be inflicted upon election. The Labor Code (in Arts. 256, 257 and 258)
defendants by the granting of relief; provides only for a certification election as the mode for
d. That complainant has no adequate remedy at law; and determining the exclusive collective bargaining
e. That public officers charged with the duty to protect representative if there is a question of representation in an
complainant’s property are unable or unwilling to appropriate bargaining unit.
furnish adequate protection.
Q: Some disgruntled members of Bantay Labor Union
c. Distinguish the jurisdiction of a Labor Arbiter from filed with the Regional Office of the DOLE a written
that of the NLRC. (2015 Bar) complaint against their union officers for
mismanagement of union funds. The Regional Director
A: As to jurisdiction, the Labor Arbiter can hear and resolve did not rule in the complainants' favor. Not satisfied,
cases under Art. 217 (old) of the Labor Code, money claims the complainants elevated the Regional Director's
under Sec. 7 of R.A. 10022; and referred wage distortion decision to the NLRC. The union officers moved to
disputes in unorganized establishments, as well as the dismiss on the ground of lack of Jurisdiction. Are the
enforcement of compromise agreements pursuant to the union officers correct? Why? (2001 Bar).
2011 NLRC Rules of Procedure, as amended. On the other
hand, the NLRC reviews decisions rendered by the LA; A: Yes. NLRC has no jurisdiction over the appealed ruling
decisions or orders rendered by the RD under Art. 129 of since the appellate authority over decisions of the Regional
the Labor Code; and conducts compulsory arbitration in director involving examination of union accounts is
certified cases. expressly conferred upon the Bureau of Labor Relations of
DOLE by the Rule of Procedure on Mediation Arbitration.
As to the power to issue a labor injunction, the NLRC can (Barles vs. Bitonio, G.R. No. 120270, June 16, 1999).
issue an injunctive writ. On the other hand, the Labor
Arbiter cannot issue an injunctive writ. DOLE REGIONAL DIRECTORS (2009, 2008, 1996 BAR)
Recovery/Adjudicatory power
Q: What is the jurisdiction of the National Labor
Relations Commission? (1995 Bar) Q: Savoy Department Store (SDS) adopted a policy of
hiring salesladies on five-month cycles. At the end of a
A: saleslady’s five-month term, another person is hired as
1. Exclusive Original Jurisdiction: replacement. Salesladies attend to store customers,
a. Certified labor disputes causing or likely to cause a wear SDS uniforms, report at specified hours, and are
strike or lockout in an industry indispensable to subject to SDS workplace rules and regulations. Those
national interest, certified to it by the Secretary of who refuse the 5-month employment contract are not
Labor or the President for compulsory arbitration; hired.
b. Injunction in ordinary labor disputes to enjoin or
restrain any actual or threatened commission of The day after the expiration of her 5-month
any or all prohibited or unlawful acts or to require engagement, Lina wore her SDS white and blue uniform
the performance of a particular act in any labor and reported for work but was denied entry into the
dispute which, if not restrained or performed store premises. Agitated, she went on a hunger strike
Q: AB, a non-resident American, seeks entry to the A: Yes. Pursuant to Art. 128(b) of the Labor Code, the DOLE
country to work as Vice-President of a local may do so where the prima facie determination of
telecommunications company. You are with the employer-employee relationship is for the exclusive
Department of Labor and Employment (DOLE). What purpose of securing compliance with labor standards
permit, if any, can the DOLE issue so that AB can assume provisions of said Code and other labor legislation.
as Vice-President in the telecommunications company?
Discuss fully. (1995, 2007 Bar) The DOLE, in the exercise of its visitorial and enforcement
powers, somehow has to make a determination of the
A: Art. 40 of the Labor Code states that “Any alien seeking existence of an employer-employee relationship. Such
admission to the Philippines for employment purposes and determination, however, cannot be co-extensive with the
any domestic or foreign employer who desires to engage an visitorial and enforcement power itself. Indeed, such
alien for employment in the Philippines shall obtain an determination is merely preliminary, incidental and
employment permit from the Department of Labor. The collateral to the DOLE’s primary function of enforcing labor
employment permit may be issued to a nonresident alien or standards provisions. (People’s Broadcasting Bombo Radyo
to the applicant employer after a determination of the non- Phils., Inc. v. Secretary of Labor, G.R. No. 179652, May 8, 2009)
availability of a person in the Philippines who is competent,
able and willing at the time of application to perform the b. If the DOLE finds that there is an employee-
services for which the alien is desired.” Thus, AB should be employer relationship, does the case fall under the
issued the abovementioned employment permit so that AB jurisdiction of the Labor Arbiter considering that
can assume as Vice President of the Telecommunication the claim of Inggo is more than P5, 000.00. Explain.
Company. (2016 Bar)
A: The Labor Code authorizes the Secretary of Labor and Jurisdiction (2010, 2005, 1997, 1995 Bar)
Employment or his duly authorized representative to
Q: State the cases when a labor dispute would fall
inquire into the financial activities of any labor organization
under the jurisdiction of voluntary arbitrators or
on the basis of a complaint under oath, supported by 20%
panel of voluntary arbitrators. (1997 Bar)
of the membership in order to determine compliance or
noncompliance with the law and to aid in the prosecution of A: A labor dispute falls under the jurisdiction of a volun-
any violation thereof. (Art. 274, Labor Code) tary arbitrator or a panel of voluntary arbitrator if a
labor disputes arises from an unresolved grievance
Q: Inggo is a dram talent hired on a per drama which in turn arises from the Interpretation or
“participation basis” by DJN Radio Company. He implementation of a Collective Bargaining Agreement or
worked from 8:00am until 5:00pm, six days a week, on of company personnel policies. (Art. 261)
a gross rate of P80.00 per script, earning an average of
P20, 000.00 per month. Inggo filed a complaint before Upon agreement of parties, a voluntary arbitrator or
the Department of Labor and Employment (DOLE) panel of voluntary arbitrators may also hear and decide
against DJN Radio for illegal deduction, non-payment of all other labor disputes including unfair labor practices
service incentive leave, and 13 th month pay, among and bargaining deadlock. (Art. 262)
49
Labor Law and Social Legislation
Q: Company C, a toy manufacturer, decided to ban the fifth and the last step of the grievance machinery.
use of cell phones in the factory premises. In the
pertinent Memorandum, management explained that A filed an action for illegal dismissal with the
too much texting and phone-calling by employees Arbitration Branch of the NLRC on November 25, 1983.
disrupted company operations. Two employees- The Company immediately filed a Motion to Dismiss on
members of Union X were terminated from the ground of prescription, invoking Article 290 of the
employment due to violation of the memorandum- Labor Code. If you were the Labor Arbiter, how would
policy. The union countered with a prohibitory you resolve the Company’s Motion to Dismiss? (1994
injunction case (with prayer for the issuance of a Bar)
temporary restraining order) filed with the Regional
Trial Court, challenging the validity and A: As the Labor Arbiter. I will deny the Motion to Dismiss.
constitutionality of the cell phone ban. The company Where an employee was dismissed and the matter of his
filed a motion to dismiss, arguing that the case should dismissal was then referred to the grievance machinery
be referred to the grievance machinery pursuant to an pursuant to the provision in the existing collective
existing Collective Bargaining Agreement with Union X, bargaining agreement, and the grievance machinery had a
and eventually to Voluntary Arbitration. Is the final meeting after quite a long while thereafter, the
company correct? Explain. (2010 Bar) complaint for illegal dismissal was then filed, the action
was not barred by laches, as the pendency of the matter
A: Yes. Termination cases arising in or resulting from the before the grievance machinery affected the ripeness of the
interpretation and implementation of collective bargaining cause of action for illegal dismissal. [Radio Communications
agreements, and interpretation and enforcement of of the Philippines, Inc. (RCPI), v. National Labor Relations
company personnel policies which were initially processed Commission, et al. G.R No. 102958. 25 June 1993]
at the various steps of the plant-level Grievance Procedures
under the parties collective bargaining agreements, fall Alternative Answer:
within the original and exclusive jurisdiction of the
voluntary arbitrator pursuant to Article 217 (c) and Article If I were the Labor Arbiter, I will deny the motion to dismiss
261 of the Labor Code. because the action for illegal dismissal has not yet
prescribed. The prescriptive period for an action for illegal
PRESCRIPTION OF ACTIONS dismissal is four (4) years. (Callanta vs. Carnation, 145 SCRA
268)
Money claims (2013, 2010 Bar)
Q: The general manager of Junk Food Manufacturing
Q: A driver for a bus company, sued his employer for Corporation dismissed Andrew Tan, a rank-and-file
non-payment of commutable service incentive leave employee on the ground of insubordination. The
credits upon his resignation after five years of general manager served on Andrew Tan the letter of
employment. The bus company argued that A was not termination effective upon receipt which was on 08
entitled to service incentive leave since he was March 1992. Shocked by his unexpected dismissal.
considered a field personnel and was paid on Andrew Tan confronted the general manager and hit
commission basis and that, in any event, his claim had the latter on the head with a leap pipe.
prescribed. If you were the Labor Arbiter, how would
you rule? Explain. (2010 Bar) Junk Food Manufacturing filed a complaint in court
against Andrew Tan for less serious physical injuries.
A: The money claim as cause of action has prescribed Somehow, Andrew Tan was acquitted by the court
because the claim was filed after five (5) years from date of assigned to hear the criminal case. A few days following
negotiation. Art. 291 of the Labor Code provides that all his acquittal, or on 01 March 1996, Andrew Tan filed
money claims arising from employer-employee relations complaint against the company for illegal dismissal,
occurring during the effectivity of the Code shall be filed reinstatement and the payment of backwages and
within three (3) years from that time the cause of action has damages. Was the complaint filed by Andrew Tan for
accrued, otherwise, they shall be forever barred. illegal dismissal within the reglementary period
granted by law? (1997 Bar)
Q: Chito was illegally dismissed by DEF Corp. effective
A: Yes. The complaint was filed within four (4) years from
at the close of business hours of December 29, 2009. If
the date Andrew Tan was dismissed by his employer. Illegal
he has money claims against DEF Corp., he can make the
dismissal, as a cause of action, prescribes after four (4)
claim without any legal bar within _________. (2013 Bar)
years from the time the cause of action, namely, illegal
dismissal took place. This is pursuant to the Civil Code
A: three (3) years. [Basis: Article 297 (formerly 291) of the which provides that actions upon an injury to the rights of a
Labor Code] person should be initiated within four years from the time
the right of the action accrues. (Art. 1146 of the Civil Code)
Illegal dismissal (2002, 1997, 1994, 1991 Bar)
Q: State your agreement or disagreement with the
Q: On October 30, 1980, A, an employee, was served
following statement and explain your answer briefly: A
notice of dismissal allegedly for gross dishonesty. criminal case filed against an employee does not have
Forthwith, the Union to which A was a member raised
the effect of suspending or interrupting the running of
A’s dismissal with the grievance machinery as provided
the prescriptive period for the filing of an action for
for in its Collective Bargaining Agreement (CBA). At illegal dismissal. (2002 Bar)
that point, negotiations for a new CBA was in progress.
Hence, both the Union and the Company had very little A. I agree. The two (2) cases, namely: the criminal case
time to address A’s grievance. In fact, said grievance, as where the employee is the accused; and the case for illegal
it were, slept the sleep of the dead, being resolved only dismissal, where the employee would be the complainant,
with finality on November 23, 1983 when the General are two (2) separate and independent actions governed by
Manager of the Company affirmed A’s dismissal on the different rules, venues, and procedures. The criminal case is
51