LABOR LAW REVIEW

May 7, 2023

PREVENTIVE SUSPENSION

Ground: Poses imminent danger to the life and property of the ER

Period: for 30 days only. Beyond 30 days, you have to pay the EE. Unless, the er will
have to be liable for constructive dismissal

Does the twin notice rule apply to PS? VIP BARBET

- No, because PS does not amount to termination as it is only an investigation. It
is enough that you inform the EE that he is subject of the suspension.

SUSPENSION/TEMPRORAY LAY-OFF (FLOATING STATUS) VIP BARBET

See article 301 of the LC

Jurisprudence: requires at least 1 month notice. non-compliance liable for constructive
dismissal
usual ex: security guards
if for 1 month, wala talaga, you have to place him to retrenchment him and pay him
half month salary for every year of service
allowable floating status: 6mos
For serious business loss, no need to pay separation pay. Xpn: If partial closure, you
have to pay separation pay.

RETIREMENT. VIP BARBET

60 and 65 types

Two requisites which must concur:

1. 60/65
 2. In service for at least 5yrs
3.
Formula (SC)
Half month salary is 22.5 days x rates (latest rate of salary at the time of retirement) x
number of years
(The 22.5 include all benefits including the 13month)

Are employees allowed to stipulate earlier retirement age?

Yes, provided the workers expressly consented to it. If he does not consent, the ER is
liable for constructive dismissal.

“…while it is true that parties are allowed to… jurisprudence however requires that the
parties… here, there is no showing that he consented, hence, he cannot be compelled
to retire unless the ER is liable for constructive dismissal.”
-this refers to 60 because 65 is mandatory.

When you use “while”, always follow with however

Can retirement and separation pay be allowed to be given ng concurrently?

YES said by the SC. They are not mutually exclusive since they have different purposes.

There are 2 instances when the--- 11:21 time

Pag 65 y.o. tapos you are validly terminated, no separation pay
No retirement benifts if the ee is validly terminated

RESIGNATION
1. At least for 30 days before resignation, you have to notify your employer
(noncompliance will make the EE liable for damages);
Check:
1. The acts of the ee before and after resignation to check voluntariness
2. Did he file the case immediately after resignation
-in such case, there is no resignation but constructive dismissal. The burden of proof to
show valid resignation is on the Er.

Can the Ee ask for separation pay?

Gr: NO
Xpn:
1. Stipulation in the contract of employment
2. CBA

CONSEQUNECES OF ILLEGAL DISMISSAL

1. Separation pay- an option in certain cases

The basis of SP is your years in the work
1 month pay for every years of service ex 30 years, 30 month pay (separate from the
backwages to be paid to you)

A fraction of 6 mos is 1 year

Ex: 1 year and 6 mos – 2months pay because the 6 mos is considered 1 year
Half month pay if you worked less than 6 months.
1month or half month
When encountering SP, you see muna
Basis:
SP- years served (this also runs until finality)
BW- months you are dismissed (until when? This continues to accrue until finality of
judgement)
SP-the basis of the rate: it should be your latest salary

REINSTATMENT AND BACKWAGES AWARD: amount

BW: until actual reinstatement

BW-the basis of the rate: includes all the increases during the pendency of the case

BW AND SP can always be awarded at the same time

What cant be is SP and reinstatement. SP is awarded in lieu of reinstatement

What are included in the SP?

Aside form basic salary
1. Allowances

In BW
1. 13th month pay
2. SIL

What if there is no illegal dismissal, can the worker ask for the SP?
SC is clear than when there is no ID, do not amount SP. This is only awarded in lieu of
reinstatement upon a finding of ID.
Sir wants to ask daw dis hahaha.
---The case is ID. The LA says no ID and ordered ur reinstatement.
Is the ER required to pay backwages?
Answer: NO. because there is no ID. Because of the principle of No work, no
pay. (even sp hehe)

---What if no ID and the LA ordered employee to go back to work, but our

relationship is strained? Can Sp BE ORDERED?
Answer: no. strained relationship is not enough justification to award SP IF
NO ID.

SP CAN ONLY BE WAREDED BECAUSE OF STRAUNED RELATIONSHIP ONLY IN

CAS EOF ID

REINSTATEMENT VERY VIP BARBET

Seniority rights – important because of the first in, last out principle
1. Actual
2. Payroll

When the LA orders reinstatmen,t it is immediatelye xcutory. Without need of writ if

exec. Unless, ER is liable for contempt and accrual of salary

Case
Nay iD, therefore may backwages of 2m. and reinstatement. Naga peal si employer sa
NLRC division (always put this para maimpress daw hehehe) within calendar 10 days
(no [motion for extension). (one of the reqs of appeal is bond in amount equivalent to
the monetary judgement) (these req of appea is to the employer only. He ha sto file
noytice of appeal and __, which is sabay) to be file diwth Court of Origin (RAB) because
the latter is to forward the records to NLRC
Will the posting of bond stop the reinstatment? Canthe employer argue na since may
bond the employee can be not reinstated?

NO. the psoying of bond will not tsop the reinstatement of the employee.

What if thebond is kulang, the decision will become funals and executory.

So what if (2016) the decision of LA is no ID, so nag appeal si ee (no bond kais no
ward). In appeal the NLRC says nay ID. Q: is reinstatement executory?
NO. you HAVE tow iat fir the lapse of 10 calendar days

What if there failure to reinstate?

Salary continue sto run until actual reinstatement withoutprejudic eot the penalty of
contempot

What if nag appeal si Er, on appeal the decision is revrsed and baid ang dismissal. Is he
required to refund those he received?

NO. he is not required to refund the salary he received during the pendency of the
appeal that will defeat the prupsoe of reinstatement order which is final and excutory

Clean and ckean as you

Clean and clean as you prosper
Excellent in your responsibility s
I will practice labor law and become a judge In Shaa Allah <3

Attorney’s fees

As a rule it beongs to the client. The assupmption of aw is that it is used by

the client in his case

Tip:
Contingency : akin ang Atty fee ahaha

Who is liable in case of corporation?

Corporation itself wich has separate jueidical peroanlity moe wmoew. Xpn:
unless they cated in bad faith
s

The corpo is noty liable becau;.. apart form the officers, unless they acte din bad fauth,
and the sa eis absent in this case.
In case of sole prope, he is alibel

What is the prescriptive periof of ID? 4 Years.

What interrupts prescription. The filing f=if the SENA/. This is a preq to labor cases
BY JURISPRUDENCE/JURISPRUDENCes provides

Notes: pm sir Atog to check ur answers. Join his mentorship class.

- Share and suggest this to BSL