Professional Documents
Culture Documents
HAND-OUTS FOR
A. GENERAL CONCEPTS
1. CONSTITUTIONAL AND STATUTORY BASIS OF LABOR LAW AND SOCIAL
LEGISLATION
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
Hence, under the principle of incorporation, the minimum labor standards and
benefits in Labor Code are considered inherent in every employer-employee
relationship even absent a written employment contract.
SOCIAL LEGISLATION
Governs effects of employment,
e.g., compensation for death
Involves long range benefits
Paid by government agencies
Cebu Institute of Technology vs. Ople, 156 SCRA 620 (1987). Ponente: J. Irene Cortes.
1
LABOR LAW
5.1
The CA was therefore correct when it ruled that, although the Bank is
authorized to issue rules and regulations pertinent to the availment and
administration of loans under the CBA, the additional rules and regulations
must NOT impose new conditions which are not contemplated in the CBA
and should be within the realm of reasonableness. The No NDB policy is
a new condition which is NEVER contemplated in the CBA and at some
points, unreasonable to the employees because it provides that before an
employee or his/her spouse can avail of the loan benefits under the CBA,
the said employee or his/her spouse must not be listed in the Negative Data
Bank, or if previously listed therein, must obtain clearance of at least one
(1) year or six months, s the case may be, prior to a loan application. If the
Bank intended to include the No NDB policy in the CBA, it should
have presented such proposal to the union during negotiations. To
include such policy after the effectivity of the CBA is deceptive and
goes beyond the original agreement between the parties.
6. Paradigm shift towards mutual cooperation - It is high time that employer and
employee cease to view each other as adversaries and instead recognize that there is
a symbiotic relationship, wherein they must rely on each other to ensure the success
of the business. (Toyota Motor Phils. Workers vs. NLRC, 537 SCRA 171)
B. EMPLOYER-EMPLOYEE RELATIONSHIP
1. CONCEPT OF EMPLOYER-EMPLOYEE RELATIONSHIP
General rule:
An employer-employee relationship must exist between the party
litigants for the labor courts to exercise jurisdiction over a particular
case.
Exception/In the reverse:
Article 212(l) of the Labor Code where a labor dispute can nevertheless
exist regardless of whether the disputants stand in the proximate
relationship of employer and employee, provided the controversy
concerns, among others, the terms and conditions of employment or a
change or arrangement thereof.
Put differently, and as defined by law, the existence of a labor dispute is
not negatived by the fact that the plaintiffs and defendants do not stand
in the proximate relation of employer and employee. (San Miguel
Corporation Employees Union-PTGWO vs. Bersamira, 186 SCRA 496
[1990]). EXAMPLE: ALLEGED INDEPENDENT CONTRACTOR VS.
EMPLOYEE
If a labor dispute exists as defined by law, even if in reality, there exists
no employer-employee relationship between the contending parties, the
case could still fall under the original and exclusive jurisdiction of the
labor arbiter. (Abad Opinion)
In determining the nature of the case, check the principal relief sought by the
complainant. That is the determinative factor that determines jurisdiction. In
the Smart case, the case filed was one of replevin, and hence, jurisdiction lies
with the regular courts. In the Margallo case, the principal case was one of
illegal termination with claim for reimbursement as well as damages, and
hence, properly falls within the jurisdiction of the Labor Arbiter.
Adas notes:
1. If the complainant is named as a corporate officer per Articles and/or bylaws, then the removal of the person is an intra-corporate controversy and
within the jurisdiction of the ordinary courts. If not, then the person is an
ordinary employee who may only be terminated for just or authorized
cause, and after due process compliance.
2. How are corporate offices created? Corporate offices are created in two
(2) distinct ways:
(a) by virtue of the Charter or the By-laws of the Corporation; or
(b) by resolution of the Board of Directors duly empowered under the bylaws to create additional offices as may be necessary under the
circumstances. (WPP Communications vs. Galera, G.R. No. 169207 and
Galera vs. WPP Communications, G.R. No. 169239, 25 March 2010)
CASES:
o Rules that merely serve as guidelines, which only promote the result.
In such case, no employer-employee relationship exists.
o Rules that fix the methodology and bind or restrict the party hired to
the use of such means or methods. These address both the result
and means employed to achieve it and hence, employer-employee
relationship exists. (Insular Life vs. NLRC, 179 SCRA 459).
RULES as
GUIDELINES
NO CONTROL
RULES fixing
METHOD
CONTROL,
ER-EE RELN
NO ER-EE
RELN
3.2 CASES:
3.2.1
General househelp;
Yaya;
Cook;
Gardener;
Laundry person; or
Any person who REGULARLY performs domestic work in one
household on an occupational basis.
Service providers;
b)
Family drivers; (Adas note: Family drivers were NOT exempted
under the law but only in the Implementing Rules. This may thus be
subject to question. FOR POSSIBLE BAR PROBLEM.)
c)
Children under foster family arrangements; and
d)
Any other person who performs work occasionally or sporadically
and not on an occupational basis.
2)
3)
limit. The parameters and limits have yet to be fixed by the Department of Labor
which is presently working on the Implementing Rules.
Some salient features of this new law are as follows:
2.1 As regards women night workers, the law provides that women who are pregnant
or nursing their children for a period of at least sixteen (16) weeks before or after
childbirth, are to be allowed alternative to night work, such as: (a) transfer to day
work where this is possible; (b) the provision of social security benefits; or (c)
an extension of maternity leave.
During the periods referred to above, a woman night worker shall NOT be
dismissed or given notice of dismissal, EXCEPT for just or authorized
causes provided for in this Code that are not connected with pregnancy,
childbirth and childcare responsibilities.
During these instances, the women night worker shall not lose the benefits
regarding her status, seniority and access to promotion which may attach to
her regular night work position. These measures shall not have the effect
of REDUCING the protection and benefits connected with maternity leave
under existing laws.
Pregnant women and nursing mothers may be allowed to work at night only if
a competent physician, other than the company physician, shall certify their
fitness to render night work, and specify, in the case of pregnant employees,
the period of the pregnancy that they can safely work.
Right to health assessement. -- At their request, workers shall have the right to
undergo a health assessment without charge and to receive advice on how to
reduce or avoid health problems associated with their work on the following
instances:
(a) Before taking up an assignment as a night worker:
(b) At regular intervals during such an assignment: and
(c) If they experience health problems during such an assignment which are
not caused by factors other than the performance of night work.
With the exception of a finding of unfitness for night work, the findings of such
assessments shall not be transmitted to others without the workers' consent
and shall not be used to their detriment.
Right to transfer to similar job. -- Night workers who are certified as unfit for
night work, due to health reasons, shall be transferred, whenever practicable,
to a similar job for which they are unfit to work. If such transfer to a similar job is
not practicable, these workers shall be granted the same benefits as other
workers who are unable to work, or to secure employment during such period.
A night worker certified as temporarily unfit for night work shall be given the
13
same protection against dismissal as other workers who are prevented from
working for reasons of health"
3. REPUBLIC ACT 9710 ENTITLED THE MAGNA CARTA OF WOMEN. (By Atty.
Suzy Selleza)
Recognizing the economic, political, and sociocultural realities affecting womens
current condition, Republic Act No. 9710, otherwise known as the Magna Carta of
Women was enacted along with its Implementing Rules effective on 15 September
2009 and 10 July 2010, respectively.
The promulgation of this law affirms the role of women in nation building, and
recognizes the substantive equality of women and men. As such, measures have been
made to promote empowerment of women, pursue equal opportunities for women and
men, ensure equal access to resources and to development results and outcome, and
eliminate discrimination and inequality in the economic, political, social and cultural life
of women and men.
3.1. Discrimination defined:
GYNECOLOGICAL Leave benefits of two (2) months with full pay based on
gross monthly compensation, for women employees who undergo surgery
caused by gynecological disorders, provided that they have rendered continuous
aggregate employment service of at least six (6) months for the last twelve (12)
months; (Section 21)
AS AMENDED BY DOLE Department Order No. 112-A [22 May 2012]
providing for the guidelines on the Implementation of the leave benefit for
Women Employees in the private sector. -- Ada
DOLE inserted a new provision under Section 4, which provides: The special
leave benefit. The two (2) months special leave benefit is the maximum period of
leave with pay that a woman may avail of under RA 9710. For purposes of
determining the period of leave with pay that will be allowed to a woman
employee, the certification of a competent physician as required period for
recuperation shall be controlling.
15
3.3. Notes: In addition to the two-month gynecological leave, please take note that
the woman employee may, in certain cases, avail of additional leaves, to wit:
3.3.1
16
3.3.2
Solo Parent Leave under Republic Act No. 8972, SOLO PARENTS
WELFARE ACT OF 2000:
SECTION 8.
Parental Leave. In addition to leave privileges under
existing laws, parental leave of not more than seven (7) working days
every year shall be granted to any solo parent employee who has rendered
service of at least one (1) year.
D. MANAGEMENT PREROGATIVES:
1.
2.
3. CASES:
3.1 NEW CASE: Royal Plant Workers Union vs. Coca-Cola Bottlers Phils.,
G.R. 198783, 15 April 2013.
Question: Is the decision of Coca-Cola Bottlers to take out the chairs of
employees in an assembly line in exchange for additional periods of
rest/breaks, a valid exercise of management prerogatives, or is it a diminution
of benefit which cannot be withdrawn without employees consent?
Unions position: The use of chairs by the operators had been a company
practice for 34 years, and cannot be withdrawn without consent of affected
employees. Having chairs are favourable to the assembly line operators who
get tired and exhausted; the frequency of the break period is not advantageous
to the operators because it cannot compensate for the time they are made to
stand throughout their working time.
Management position: The directive to take out the chairs is in line with the I
Operate, I Maintain, I Clean program of petitioner for bottling operators,
17
3.3
18
Supreme Court: NO!!! The refusal to obey a valid transfer order constitutes
willful disobedience of a lawful order of an employer. Employees may object
to, negotiate and seek redress against employers for rules or orders that they
regard as unjust or illegal. However, until and unless these rules or orders are
declared illegal or improper by competent authority, the employees ignore or
disobey them at their peril. In fact, Delada cannot hide under the legal cloak of
19
3.5 Off-detailing or floating status for a period of not more than six (6)
months, is not constructive dismissal
Nippon Housing Phil. Inc., et. al., vs. Maia Angela Reyes, G.R. No.
177816, 03 August 2011. -- Considering that even labor laws discourage
intrusion in the employers judgment concerning the conduct of their business,
courts often decline to interfere in their legitimate business decisions, absent
showing of illegality, bad faith or arbitrariness. Indeed, the right of employees
to security of tenure does not give them vested rights to their positions to the
extent of depriving management of its prerogative to change their assignments
or to transfer them. The record shows that Leynes filed the complaint for
actual illegal dismissal from which the case originated on 22 February 2002 or
immediately upon being placed on floating status as a consequence of NHPIs
hiring of a new Property Manager for the Project. The rule is settled,
however, that "off-detailing" is not equivalent to dismissal, so long as
such status does not continue beyond a reasonable time and that it is
only when such a "floating status" lasts for more than six months that
the employee may be considered to have been constructively
dismissed. A complaint for illegal dismissal filed prior to the lapse of said sixmonth and/or the actual dismissal of the employee is generally considered as
prematurely filed.
20
3.6 Contracting out of services. (See also discussion on Valid job-contracting vs.
Labor-only contracting on SECTION F, PAGE 32 HEREUNDER.)
General rule: Management may contact out services in the exercise of its
anagement prerogatives.
Doctrinal case: Asian Alcohol Corporation vs. NLRC, 305 SCRA 416, at
435-436 [1999], cf. Serrano vs. NLRC, G.R. No. 117040 [27 Jan 2000]).
The Supreme Court has held in a number of cases that an employer's good
faith in implementing a redundancy program is NOT necessarily destroyed by
the availment of the services of an independent contractor, to replace the
services of the terminated employees. The reduction of employees in a
21
E. KINDS OF EMPLOYMENT
1.
REGULAR EMPLOYEES those who are hired for activities which are
necessary or desirable in the usual trade or business of the employer
ABS-CBN CASES:
(a) ON-CAMERA TALENT IS AN INDEPENDENT CONTRACTOR:
Jose Sonza vs. ABS-CBN, G.R. 138051, 10 June 2004. Relationship of
a big name talent (Jay Sonza) and a television-radio broadcasting company
is one of an independent contracting arrangement. ABS-CBN engaged
SONZAs services specifically to co-host the "Mel & Jay" programs. ABSCBN did not assign any other work to SONZA. To perform his work,
SONZA only needed his skills and talent. How SONZA delivered his lines,
appeared on television, and sounded on radio were outside ABS-CBNs
control. SONZA did not have to render eight hours of work per day. The
Agreement required SONZA to attend only rehearsals and tapings of the
shows, as well as pre- and post-production staff meetings. ABS-CBN could
not dictate the contents of SONZAs script. However, the Agreement
prohibited SONZA from criticizing in his shows ABS-CBN or its interests.
The clear implication is that SONZA had a free hand on what to say or
discuss in his shows provided he did not attack ABS-CBN or its interests.
We find that ABS-CBN was not involved in the actual performance that
produced the finished product of SONZAs work.33 ABS-CBN did not
instruct SONZA how to perform his job. ABS-CBN merely reserved the right
to modify the program format and airtime schedule "for more effective
programming." ABS-CBNs sole concern was the quality of the shows and
their standing in the ratings. Clearly, ABS-CBN did not exercise control over
the means and methods of performance of SONZAs work.
(b) OFF-CAMERA TALENTS ARE EMPLOYEES.
Farley Fulache et al vs. ABS-CBN, G.R. No. 183810, 21 January 2010..
Complainants were drivers, cameramen, editors, teleprompter and VTR
man who sought inclusion in the appropriate bargaining unit of the rankand-file employees and availment of CBA benefits. ABS-CBN denied
employment relationship, on the ground that they were off-camera talents
in the nature of independent contractors. Pending the regularization case
filed before the NLRC, ABS-CBN dismissed the drivers for their refusal to
sign up employment contracts with service contractor ABLE services.
Supreme Court affirmed CA and Labor tribunals findings, re: existence of
employer-employee relationship and hence, to be considered as regular
employees who may be included in the CBA availments.
2.
familiarizing oneself with the policies and objectives, lack of concern for the
companys interest in refusing to attend companyseminars intended to
familiarize company employees with Management objectives and
enhancement of company interest and objectives, lack of enthusiasm toward
work, and lack of interest in fostering relationship with his co-employees.
QUESTION: May a probationary lineman validly claim that being a
subordinate, he cannot be considered a conspirator in the commission of
pilferage committed by his superior? Manila Electric Company vs. Jan Carlo
Gala, G.R. No. 191288. 07 March 2012.
Facts: Complainant Gala insists that he cannot be sanctioned for the theft of
company property on May 25, 2006. He maintains that:
He had no direct participation in the incident
He was not aware that an illegal activity was going on as he was at
some distance from the trucks when the alleged theft was being
committed.
He did not call the attention of the foremen because he was a mere
lineman and he was focused on what he was doing at the time.
Supreme Court: Gala misses the point. He forgets that as a probationary
employee, his overall job performance and his behavior were being
monitored and measured in accordance with the standards (i.e., the terms
and conditions) laid down in his probationary employment agreement, viz.
2.2
2.3
applied to the case. On appeal, the NLRC affirmed the Labor Arbiters
decision. On a petition for certiorari, the Court of Appeals reversed the
decision of the NLRC.
Issues: Are fixed-term probationary contracts valid? Was the school
correct in simply refusing to renew the probationary fixed-term contract?
Decision: the Supreme Court stated that nothing is illegitimate in
defining the school-teacher on fixed term basis. HOWEVER, the
school should not forget that its system of fixed-term contract is a
system that operates during the probationary period and for this
reason is subject to the terms of Article 281 of the Labor Code.
Unless this reconciliation is made, the requirements of this Article on
probationary status would be fully negated as the school may freely
choose not to renew contracts simply because their terms have expired.
Given the clear constitutional and statutory intents, the Supreme Court
concluded that in a situation where the probationary status overlaps
with a fixed-term contract not specifically used for the fixed term it
offers, Article 281 should assume primacy and the fixed-period
character of the contract must give way.
NOTE1: In this instance therefore, the School illegally dismissed the
teachers because it simply refused to renew the employment contract.
Because the teachers were under a probationary period, it was
incumbent upon the School to have evaluated said teachers, and to
have informed them of their failure to qualify as regular employees in
accordance with standards made known to them at the time of hiring.
While the Supreme Court can grant that the standards were duly
communicated to the teachers and could be applied beginning the 1st
trimester of the school year 2000-2001, glaring and very basic gaps in
the schools evidence still exist. The exact terms of the standards
were never introduced as evidence; neither does the evidence
show how these standards were applied to the teachers. Without
these pieces of evidence the Supreme Court had nothing to
consider and pass upon as valid or invalid for each of the
teachers.
Inevitably, the non-renewal (or effectively, the
termination of employment of employees on probationary status)
lacks the supporting finding of just cause that the law requires
and, hence, is illegal.
NOTE2: To highlight what the Supreme Court meant by a fixed-term
contract specifically used for the fixed term it offers, a replacement
teacher, for example, may be contracted for a period of one year to
temporarily take the place of a permanent teacher on a one-year study
leave. The expiration of the replacement teachers contracted term,
under the circumstances, leads to no probationary status implications
as she was never employed on probationary basis; her employment is
for a specific purpose with particular focus on the term and with every
intent to end her teaching relationship with the school upon expiration of
this term. (Mercado, et al. vs. AMA Computer College Paraaque City,
Inc. 618 SCRA 218 [2010]. Emphasis supplied.)
2.4
3.
TERM EMPLOYEES those who are hired for a specific period, the
arrival of the date specified in the contract of which automatically terminates
the employer-employee relationship. (Brent School vs. NLRC, 181 SCRA
702 [1989], reiterated in AMA Computer Paranaque vs. Austria, 538 SCRA
438 [November 2007]).
3.1 A contract of employment for a definite period terminates by its own
terms at the end of such period
3.2 The decisive determinant in term employment should not be the activities
that the employee is called upon to perform, but the day certain agreed
upon by the parties for the commencement and the termination of
their employment relation.
3.3 Criteria for fixed term employment contracts so that the same will
not circumvent security of tenure:
A.
latter.(PNOC vs. NLRC [G.R. No. 97747, 31 March 1993] and Brent
School vs. NRLC, 181 SCRA 702]
4.
employees. (Hanjin Heavy Industries vs. Ibanez et., al., G.R. 170181,
26 June 2008.)
4.2
28
4.6 CASES:
Roy Pasos vs. PNCC, G.R. No. 192394, 03 July 2013. While Pasos
was unquestionably hired as a project employee for three months at
the start of his engagement with PNCC, his employment thereafter was
extended without subsequent contract or appointment that specified a
particular duration for the extension. As such, he was then to be
considered a regular employee of PNCC. His status as a regular
employee was NOT affected by the fact that he was assigned to
several other projects thereafter, and that there were intervals in
between said project, because he enjoys security of tenure. The
termination by PNCC of Pasos employment by reason of contract
expiration or project completion at this point therefore, is illegal
because these are not the grounds for the dismissal of a regular
employee.
IMPORTANT PERALTA CASE: Wilfredo Aro, Ronilo Tirol, et
al. vs. NLRC, Fourth Division, et al., G.R. No. 174792. 07 March
2012, J. Peralta -- The length of service or the re-hiring of
construction workers on a project-to-project basis does not
confer upon them regular employment status, since their re-hiring
is only a natural consequence of the fact that experienced
construction workers are preferred. Employees who are hired for
carrying out a separate job, distinct from the other undertakings of the
company, the scope and duration of which has been determined and
made known to the employees at the time of the employment, are
properly treated as project employees and their services may be
lawfully terminated upon the completion of a project. Should the terms
of their employment fail to comply with this standard, they cannot be
considered project employees.
CONTRA: D.M. Consunji vs. Estelito Jamin, G.R. No. 192514, 18
April 2012. -- We agree with the CA. In Liganza v. RBL Shipyard
Corporation where this Court held that [a]ssuming, without granting[,]
that [the] petitioner was initially hired for specific projects or
undertakings, the repeated re-hiring and continuing need for his
services for over eight (8) years have undeniably made him a regular
employee. We find the Liganza ruling squarely applicable to this case,
considering that
for almost 31 years, DMCI had repeatedly,
continuously and successively engaged Jamins services since he was
hired on December 17, 1968 or for a total of 38 times as shown by
the schedule of projects submitted by DMCI to the labor arbiter[ and
three more projects or engagements added by Jamin, which he
claimed DMCI intentionally did not include in its schedule so as to
make it appear that there were wide gaps in his engagements. Xxx
While the contracts indeed show that Jamin had been engaged as a
project employee, there was an almost unbroken string of Jamins
rehiring from December 17, 1968 up to the termination of his
employment on March 20, 1999. With our ruling that Jamin had been a
regular employee, the issue of whether DMCI submitted termination of
employment reports, pursuant to Policy Instructions No. 20
(Undated[46]), as superseded by DOLE Department Order No. 19
(series of 1993), has become academic. To set the records straight,
DMCI indeed submitted reports to the DOLE but as pointed out by
Jamin, the submissions started only in 1992.[48] DMCI explained
that it submitted the earlier reports (1982), but it lost and never
recovered the reports. It reconstituted the lost reports and submitted
them to the DOLE in October 1992; thus, the dates appearing in the
reports.
29
5.
Issue:
Was there an employer-employee relationship between Jaime
Fulo and Gapayao? Yes.
Gapayaos position: Gapayao insists that the deceased was not his
employee, but that of another person. Gapayao contends that he is merely
the landlord of the farm which Jaime Fulo tilled. And that it was Gapayaos
tenant, Amado Gacelo who was Fulos employer. Her likewise contends that
the deceased was really a freelance worker
Decision: YES, Fulo was Gapayaos employee.
Farm workers generally fall under the definition of seasonal employees.
We have consistently held that seasonal employees may be considered as
regular employees. Regular seasonal employees are those called to work
from time to time. The nature of their relationship with the employer is such
that during the off season, they are temporarily laid off; but reemployed
during the summer season or when their services may be needed. They are
in regular employment because of the nature of their job, and not because of
the length of time they have worked.
A reading of the records reveals that the deceased was indeed a farm worker
who was in the regular employ of petitioner. From year to year, starting
January 1983 up until his death, the deceased had been working on
petitioners land by harvesting abaca and coconut, processing copra, and
clearing weeds. His employment was continuous in the sense that it was
done for more than one harvesting season. Moreover, no amount of
reasoning could detract from the fact that these tasks were necessary or
desirable in the usual business of petitioner.
The other tasks allegedly done by the deceased outside his usual farm work
only bolster the existence of an employer-employee relationship. As found by
the SSC, the deceased was a construction worker in the building and a
helper in the bakery, grocery, hardware, and piggery all owned by
petitioner. This fact only proves that even during the off season, the
deceased was still in the employ of petitioner.
CASE2: Universal Robina Sugar Milling Corporation and Rene Cabati,
G.R. No. 186439. 15 January 2014. J Brion.
Facts: The complainants hired as employees of URSUMCO, on various
dates (between February 1988 and April 1996) and on different capacities,8
i.e., drivers, crane operators, bucket hookers, welders,mechanics, laboratory
attendants and aides, steel workers, laborers, carpenters and masons,
among others. At the start of their respective engagements, the complainants
signed contracts of employment for a period of one (1) month or for a given
season. URSUMCO repeatedly hired the complainants to perform the same
duties and, for every engagement, required the latter to sign new employment
contracts for the same duration of one month or a given season.
Complainants filed for regularization plus entitlement to CBA benefits. Labor
Arbiter dismissed the complaints and ruled that they were project or seasonal
employees. On appeal, NLRC reversed the Labor Arbiter and ruled that the
complainants were regular employees entitled to the monetary benefits under
the CBA. On petition for review on certiorari, CA ruled that complainants were
regular albeit seasonal -- employees, but deleted the monetary CBA
benefits because the CBA benefits are for regular workers only.
31
6.
8.
9.
FRAMEWORK:
General rule: Employment is deemed regular
Exception:
Probationary
Term
Project
Seasonal
Casual
Exception to exception:
Probationary employees allowed to work after probn. period
Casual workers rendering service for more than one year
Term employee allowed to work after term
Project employee allowed to work after project without any contract
although he also accepts messengerial service requests from other firms as their
orders come. He started with one permanent secretary and six (6) messengers on a
one-year, fixed-term, contract. Is the arrangement legal from the perspective of
labor standards? (1%)
(A) No, because the arrangement will circumvent worker's right to security of tenure.
(B) No. If allowed, the arrangement will serve as starting point in weakening the security of
tenure guarantee.
(C) Yes, if the messengers are hired through a contractor.
(D) Yes, because the business is temporary and the contracted undertaking is specific and
time-bound.
(E) No, because the fixed term provided is invalid.
Mr. Ortanez has been in the building construction business for several years. He
asks you, as his new labor counsel, for the rules he must observe in considering
regular employment in the construction industry. You clarify that an employee,
project or non-project, will acquire regular status if __________. (1%)
(A) he has been continuously employed for more than one year
(B) his contract of employment has been repeatedly renewed, from project to project, for
several years
(C) he performs work necessary and desirable to the business, without a fixed period and
without reference to any specific project or undertaking
(D) he has lived up to the company's regularization standards
(E) All of the above.
(MEMORY AID:
R&B)
AND METHODS, FREE from the control of the principal in all matters
connected with the performance of work excepting the results thereof.
34
F.2 ELEMENTS
OF
LABOR-ONLY
CONTRACTING
PROHIBITED UNDER THE LAW [NO CAP DIRECT
CONTROL] -- Philippine Airlines vs. Ligan, 548 SCRA 181 (2008).
There is labor-only contracting where the contractor or sub-contractor merely
recruits, supplies or places workers to perform a job, work or service for a
principal.
TWO WAYS OF PROVING LABOR-ONLY CONTRACTING:
For labor-only to exist, Sec. 5 of Department Order No. 18-02 requires any two
of the elements to be present, viz.:
The
contractor
SUBSTANTIAL
or
sub-contractor
DOES
NOT HAVE
CAPITAL
DIRECTLY
RELATED to the
OR
If job-contracting: LEGAL.
ILLEGAL.
35
37
F.6 THE NEGATIVE LIST: WHAT CANNOT BE VALIDLY SUBCONTRACTED OUT? (Dept. Order No. 18-02 as amended by Dept
Order No. 18-A, series of 2011)
1. Contracting out of a job, work or service when not done in good faith and not
justified by the exigencies of the business and the same results in the termination
of regular employees and reduction of work hours or reduction or splitting of the
bargaining unit
2. Contracting out to a Cabo.
Under the cabo system, (a) the union is the independent contractor that
engages the services of its members who are seconded to the principal; (b) the
charges against the principal are made by the Union; and the workers are paid
on union payroll without intervention of the principal.
3. Taking undue advantage of the economic situation or lack of bargaining strength
of the contractual employee, or undermining his security of tenure or basic rights,
or circumventing the provisions of regular employment, in any of the following
instances:
i)
ii)
iii)
39
7.2
its best judgment whether it should contract out a part of its work for as long as the
employer is motivated by good faith; the contracting is not for purposes of
circumventing the law; and does not involve or be the result of malicious or
arbitrary action.
7.3
7.4
The law and its implementing rules recognize that management may
rightfully exercise its prerogatives in determining what activities may
be contracted out, REGARDLESS OF WHETHER SUCH ACTIVITY IS
PERIPHERAL OR CORE IN NATURE. (Alviado et. al. vs. Procter &
Gamble, and Promm Gemm, G.R. No. 160506, 09 March 2010, Del
Castillo, J).
In the said case of Alviado vs. Proctor & Gamble (supra.), the Supreme
Court noted that the company Procter & Gamble was principally engaged
in the manufacture and production of different consumer and health
products, which it sells on a wholesale basis to various supermarkets and
distributors. To enhance consumer awareness and acceptance of the
products, P&G entered into contracts with Promm-Gem and SAPS for the
promotion and merchandising of its products.
In denying the claims by the complainants that they were employees of
Procter & Gamble, and not of the job contractors, the Supreme Court ruled:
41
It was further reiterated by the Supreme Court in the same case of Alviado
that where labor-only contracting exists, the Labor Code itself establishes
an employer-employee relationship between the employer and the
employees of the labor-only contractor." The statute establishes this
relationship for a comprehensive purpose: to prevent a circumvention of
labor laws. The contractor is considered merely an agent of the principal
employer and the latter is responsible to the employees of the labor-only
contractor as if such employees had been directly employed by the principal
employer.
7.5
7.6
prohibit the Supreme Court, in the exercise of its plenary judicial powers of
42
employer claimed that the cost of food and lodging provided by petitioner to the
respondent employees should be included in the computation of the wages
received by respondents. The Court makes a distinction between facilities and
supplements.
43
Hours of work: Hours of worked shall include: (a) all time during which an
employee is required to be on duty or to be at the prescribed workplace,
and (b) all time during which an employee is suffered or permitted to work.
The normal working hours shall be no more than eight (8) hours a day.
Meal and rest period: meal break of less than one (1) hour and short rest
periods shall be considered compensable working time
Holiday pay. -- The employee is entitled to the payment of his regular daily
basic wage (100%) during said holidays, even if the worker did not report
for work on said days; PROVIDED THAT HE WAS PRESENT OR WAS
ON LEAVE OF ABSENCE WITH PAY ON THE WORK DAY
If the employee was
IMMEDIATELY PRECEDING THE HOLIDAY.
suffered to work during the said holidays, they will be entitled to payment of
holiday premium of 200% of his basic wage (100% of basic wage PLUS
100%).
46
(A) Yes, because the employees are not receiving equal treatment in the
distribution of service charge benefits.
(B) Yes, because the law provides that the 85% employees' share in the service
charge collection should be equally divided among all the employees, in this
case, among the Cebu and Makati employees alike.
(C) No, because the employees in Makati are not similarly situated as the Cebu
employees with respect to cost of living and conditions of work.
(D) No, because the service charge benefit attaches to the outlet where service
charges are earned and should be distributed exclusively among the
employees providing service in the outlet.
(E) No, because the market and the clientele the two branches are serving, are
different.
1.6
1.7
49
35% of their hourly rate for work rendered in excess of their regular eight working
hours.
Due to the slowdown of its export business in 2012, Inter-Garments had to reduce its
overtime work; at the same time, it adjusted the overtime rates so that those who
worked overtime were only paid an additional 25%instead of the previous 35%. To
replace the workers' overtime rate loss, the company granted a one-time 5% acrossthe-board wage increase.
Vigilant Union, the rank-and-file bargaining agent, charged the company with Unfair
Labor Practice on the ground that (1) no consultations had been made on who would
render overtime work; and (2) the unilateral overtime pay rate reduction is a violation
of Article 100 (entitled Prohibition Against Elimination or Diminution of Benefits) of
the Labor Code.
QUESTION: Is the union position meritorious? (8%)
ANSWER: NO. The allegation of ULP by the Union is not meritorious. The selection
as to who would render overtime is a management prerogative. However, the
allegation of the Union on diminution of benefits (violation of Art. 100 LC) appears to
be meritorious. Since three (3) years have already elapsed, the overtime rate of
35% has ripened into practice and policy, and cannot anymore be removed. (Revilla
Trading vs. Semana, 428 SCRA 239 [2004].} This is deliberate, consistent and
practiced over a long period of time.
2.
All employers are required to pay all their rank-and-file employees a 13th month
pay not later than December 24 of every year.
4. Distressed employers:
a. currently incurring substantial losses or
b. in the case of non-profit institutions and organizations, where their income,
whether from donations, contributions, grants and other earnings from any
source, has consistently declined by more than forty (40%) percent of their
normal income for the last two (2) years, subject to the provision of Section 7
of this issuance;
5. Employers of those who are paid on commission, boundary, or task basis, and
those who are paid a fixed amount for performance of a specific work,
irrespective of the time consumed in the performance thereof.
Exception: Where the workers are paid on a piece-rate basis, in which case the
employer shall grant the required 13th month pay to such workers.
3. BONUS
3.1 Nature of a bonus: a prerogative, not an obligation. -- The matter of giving a
bonus over and above the workers lawful salaries and allowances is entirely
dependent on the financial capability of the employer to give it. (Traders Royal
Bank vs. NLRC, 189 SCRA 274 [1990]).
EXCEPTION: When demandable under a contract.
CASE: EASTERN TELECOM PHILS. VS. EASTERN TELECOM EMPLOYEES
UNION, GR 185665, 08 FEB 2012). Company has an existing collective
bargaining agreement with the Union, including a Side Agreement to the effect that
14th, 15th and 16th month bonuses (other than 13th month pay) are granted."
Company plan to defer payment of the 14th, 15th and 16th month bonuses due to
alleged continuing deterioration of companys financial position.
ISSUE: Is Company bound to pay for the bonuses as per CBA?
ANSWER: YES! A reading of the provision in the agreement reveals that the
same provides for the giving of 14th, 15th and 16th month bonuses without
qualification. The wording of the provision does not allow any other interpretation.
There were no conditions specified in the CBA Side Agreements for the grant of
the benefits, contrary to the claim of ETPI that the same is justified only when there
are profits earned by the company. Terse and clear, the said provision does not
state that the subject bonuses shall be made to depend on the ETPIs financial
standing or that their payment was contingent upon the realization of profits.
Neither does it state that if the company derives no profits, no bonuses are to be
given to the employees. In fine, the payment of these bonuses was not related to
the profitability of business operations.
3.2 Mid-year bonus and Christmas bonus are equivalents of 13th month pay.
(Producers Bank vs. NLRC, 355 SCRA 489 [2001]).
However, benefits in the form of food or free electricity are not proper substitutes
for the 13th month pay. So, also, year-end rewards for loyalty and service cannot
be considered in lieu of 13th month pay. (Framanlis vs. Minister of Labor, 171
SCRA 87 [1989]).
52
If the commission form part of the employees basic salary, then this will
likewise be included in the computation of 13th month pay. (Philippine
Duplicators, Inc. vs. NLRC, 241 SCRA 380 [1995]).
b)
4. HOURS OF WORK.
4.1 Hours of worked shall include: (a) all time during which an employee is required to
be on duty or to be at the prescribed workplace, and (b) all time during which an
employee is suffered or permitted to work. (Art. 84, Labor Code; See also Rada
vs. NLRC, 205 SCRA 69 [1992].)
4.2 Rest period of short duration during working hours shall be counted as hours
worked. (Art. 84, Labor Code.) Example: coffee break of 15 minutes; meal period
of less than one hour, e.g., 30 minutes.
4.3 Exemptions. (See Art. 82, Labor Code.) . -- The following employees are not
covered by the Labor Code provisions on hours of work:
a)
Government employees;
b)
c)
d)
e)
f)
Field Personnel;
Members of the employer who are dependent upon him for support;
Domestic helpers and persons in the personal service of another;
Workers who are paid by results, e.g., piece workers. (Red V Coconut
Products, Ltd. vs. CIR, 17 SCRA 553 [1966], citing Lara vs. del Rosario, 94 Phil. 780)
(Note: Reason is that workers who are paid by the result are compensated on the
basis of the work completed, and NOT in respect of the time spent working on it).
5.
5.2 Homeworker, defined.-- one who performs in or about his home any
processing of goods or materials, in whole or in part, which have been
furnished directly or indirectly, by an employer and thereafter to be
returned to the latter. (Book III, Rule XIV, Section 1 of the Omnibus Rules
Implementing the Labor Code.)
HOUSEHELPERS
Minister to the personal needs and
comfort of his employer in the latters
home
HOME WORKERS
Performs in or about his own home any
processing or fabrication of goods or
materials, in whole or in part, which have
been furnished directly or indirectly, by an
employer and sold thereafter to the latter.
6.
1. When he works directly under the sole responsibility of his parents or guardian, and
his employment does not in any way interfere with his schooling. The following
conditions must be met:
The employment does not endanger the childs life, safety, health and morals;
The employment does not impair the childs normal development;
The employer parent or legal guardian provides the child with the primary and/or
secondary education prescribed by the Department of Education
ON HAZARDOUS WORK. -- Any person between fifteen (15) and eighteen (18) years
of age may be employed for NON-HAZARDOUS WORK for such number of hours and
such periods of the day as determined by the Secretary of Labor in appropriate
regulations. No such prohibition if eighteen (18) years old and above.
-- No employer shall
discriminate against any person in respect to terms and conditions of
employment on account of his age.
PROHIBITION AGAINST CHILD DISCRIMINATION.
7.
APPRENTICESHIP
LEARNERSHIP
NATURE
highly-technical
semi-skill; non-apprenticeable
PERIOD
COMITMT TO
HIRE
At option of employer
At option of learner
WAGES
DOLE
Approval
DEDUCTION for
None.
Expenses
55
8. ON
other death benefits are granted to an employee to give aid to, and if possible,
lessen the grief of, the said employee and his family who suffered the loss of a loved
one. It cannot be said that the parents grief and sense of loss arising from the death
of their unborn child, who, in this case, had a gestational life of 38-39 weeks but died
during delivery, is any less than that of parents whose child was born alive but died
subsequently. Being for the benefit of the employee, CBA provisions on
bereavement leave and other death benefits should be interpreted liberally to
give life to the intentions thereof. Time and again, the Labor Code is specific in
enunciating that in case of doubt in the interpretation of any law or provision affecting
labor, such should be interpreted in favor of labor. In the same way, the CBA and
CBA provisions should be interpreted in favor of labor.
9. DISABLED WORKERS
9.1
9.2
10.
57
58
General Rule: Any employee may be eligible to join and be a member of a labor
union, beginning on his first day of service, whether employed for a definite period
or not. (Article 277 [c], Labor Code; See also: UST Faculty Union vs. Bitonio)
2.2
relations. The two criteria are cumulative, and both must be met if an
employee is to be considered a confidential employee e.g., the
confidential relationship must exist between the employee and his
supervisor, and the supervisor must handle the prescribed responsibilities
relating to labor relations. The exclusion from bargaining units of the
employees who, in the normal course of their duties, become aware of
management policies relating to labor relations is a principal objective
sought to be accomplished by the confidential employee rule. (Tunay na
Pagkakaisa ng Manggagawa sa Asia Brewery vs. Asia Brewery, G.R. No. 162025,
03 August 2010)
Article 245 of the Labor Code does not directly prohibit confidential
employees from engaging in union activities. However, under the
doctrine of necessary implication, the disqualification of
managerial employees equally applies to confidential employees. The
confidential-employee rule justifies exclusion of confidential employees
because in the normal course of their duties they become aware of
management policies relating to labor relations. It must be stressed,
however, that when the employee does NOT have access to
confidential labor relations information, there is no legal prohibition
against confidential employees from forming, assisting, or joining a
union. (Sugbuanon Rural Bank, v. Laguesma, [G.R. No. 116194. February 2,
2000)
A
cooperative is different from an ordinary business concern, inasmuch as its
owners are likewise the ones who run and operate the business
themselves. Hence, incongruous situation where the owners will just
bargain with themselves or their co-workers (who are also co-owners).
However, this will not apply insofar as it involves employees of the
cooperative WHO ARE NOT owners or members thereof.
SSS VS. ASIAPRO COOPERATIVE: While members of a cooperative
cannot form unions and bargain with themselves, they are to be considered
as employees with respect to SSS coverage because the Cooperative acts
as an independent contractor vis--vis principal clients they secure.
2.2.5
3.
3.3
3.4
3.6
3.7
5. 2010-2012 CASES:
5.1. On Labor organization; Registration requirements. Samahang Manggagawa sa
Charter Chemical Solidarity of Unions in the Philippines for Empowerment and Reforms
[SMCC-SUPER], Zacarrias Jerry Victorio Union President v. Charter Chemical and
Coating Corporation, G.R. No. 169717, March 16, 2011.
Answer: No. It is not necessary for the charter certificate to be certified and attested
by the local/chapter officers. Considering that the charter certificate is prepared and
issued by the national union and not the local/chapter, it does not make sense to have
the local/chapters officers certify or attest to a document which they did not prepare. In
accordance with this ruling, petitioner unions charter certificate need not be executed
under oath. Consequently, it validly acquired the status of a legitimate labor
organization upon submission of (1) its charter certificate, (2) the names of its officers,
their addresses, and its principal office, and (3) its constitution and by-laws the last
two requirements having been executed under oath by the proper union officials.
fact that on 19 May 2000, appellee had submitted its financial statement for the years
1996-1999. With this submission, appellee has substantially complied with its duty to
submit its financial report for the said period.
.
There is also nothing essentially mysterious or irregular about the fact that only 127
members ratified the unions constitution and by-laws when 128 signed the attendance
sheet. It cannot be assumed that all those who attended approved of the constitution
and by-laws. Any member had the right to hold out and refrain from ratifying those
documents or to simply ignore the process. AT ANY RATE, THE LABOR CODE AND
ITS IMPLEMENTING RULES DO NOT REQUIRE THAT THE NUMBER OF
MEMBERS APPEARING ON THE DOCUMENTS IN QUESTION SHOULD
COMPLETELY DOVETAIL. For as long as the documents and signatures are
shown to be genuine and regular and the constitution and by-laws democratically
ratified, the union is deemed to have complied with registration requirements.
See also similar case of Mariwasa Siam Ceramics vs. Secretary of Labor et al., GR
No. 183317, 21 Dec 2009., where a substantial number of members allegedly recanted
their membership in the union and this was made a ground for cancellation of union
registration. We cannot give full credence to these affidavits which were executed
under suspicious circumstances, and which contain allegations unsupported by
evidence. At best, these affidavits are self-serving. They possess no probative value.
Nevertheless, even assuming the veracity of said affidavits, the legitimacy of the
respondent Union as a labor organization must be affirmed. While it is true that
withdrawal of support may be considered as resignation from the union, THE FACT
REMAINS THAT AT THE TIME OF THE UNIONS APPLICATION FOR
REGISTRATION, THE AFFIANTS WERE MEMBERS OF THE UNION AND
COMPRISED MORE THAN THE REQUIRED 20% MEMBERSHIP FOR PURPOSES
OF REGISTRATION AS A UNION. ART. 234 MERELY REQUIRES A MINIMUM OF
20% MEMBERSHIP DURING APPLICATION FOR UNION REGISTRATION. IT DOES
NOT MANDATE THAT A UNION MUST MAINTAIN THE 20% MINIMUM
MEMBERSHIP REQUIREMENT ALL THROUGHOUT ITS EXISTENCE.
2.
Rationale: The law encourages employee participation in policy and decision making,
while promoting collective bargaining. Hence, it provides for election of a legitimate
labor organization that will exclusively represent the employees for purposes of
collective bargaining with employer, for improved terms and conditions of work.
3.
that any individual employee or group of employees have the right, at any time, to
present their grievances to the employer.
The fundamental
factors in determining the appropriate collective bargaining unit are enumerated in the
case of San Miguel vs. Laguesma, 236 SCRA 595:
(a) GLOBE DOCTRINE - the will of the employees;
(b) COMMUNITY OF INTERESTS RULE - which takes into consideration the affinity
and unity of employees interests, such as substantial similarity of work and duties,
or similarity of compensation and working conditions;
(c) Prior bargaining history; and
(d) Similarity of employment status,
Factors to be considered:
2.2
If both elements are present, the employer MAY OPT to voluntarily recognize the
union.
3.2
72
(f) Denial of the petition; Grounds. The Med-Arbiter may dismiss the petition
on any of the following grounds:
o
CONTRACT BAR RULE: the petition was filed before or after the
freedom period of a duly registered collective bargaining agreement;
provided that the sixty-day period based on the original collective
bargaining agreement shall not be affected by any amendment, extension
or renewal of the collective bargaining agreement;
ONE YEAR BAR RULE: the petition was filed within one (1) year from
entry of voluntary recognition or a valid certification, consent or run-off
election and no appeal on the results of the certification, consent or runoff election is pending;
73
74
3.3
Note1:
This presupposes that the employees of the
appropriate bargaining unit did not want to be represented by
any union, or that having elected a majority union as exclusive
bargaining representative, the latter is given one (1) year
within which to negotiate with the employer.
Note 2: Where the one year period known as the
certification year during which the certified union is required to
negotiate with the employer and the filing of a petition for CE is
prohibited has expired and the majority union fails to bring
the employer to the bargaining table, the minority union may
file petition for CE. (Kaisahan ng Manggagawa vs. Trajano,
201 SCRA 453)
3) Deadlock bar rule (B5 R5 S3, IRR)
Neither may a representation question be entertained if, before
the filing of a petition for certification election, a CBA deadlock
to which an incumbent or certified bargaining agent is a party,
had been submitted for conciliation or arbitration, or had
become the subject of a Neither may a representation
question be entertained if, before the filing of a petition for
certification election, a CBA deadlock to which an incumbent
or certified bargaining agent is a party, had been submitted for
conciliation or arbitration, or had become the subject of a valid
notice of strike/lock-out
LABOR
ORGANIZATION;
COLLATERAL
PERSONALITY IS PROHIBITED.
ATTACK
ON
LEGAL
election. Petitioner moved to dismiss the petition for certification election alleging
the pendency of a petition for cancellation of the unions registration. The DOLE
Secretary ruled in favor of the legitimacy of the respondent as a labor organization
and ordered the immediate conduct of a certification election. Pending appeal in
the Court of Appeals, the petition for cancellation was granted and became final
and executory. Petitioner argued that the cancellation of the unions certificate of
registration should retroact to the time of its issuance. Thus, it claimed that the
unions petition for certification election and its demand to enter into collective
bargaining agreement with the petitioner should be dismissed due to respondents
lack of legal personality. The Court ruled that the pendency of a petition for
cancellation of union registration does not preclude collective bargaining,
and that an order to hold a certification election is proper despite the
pendency of the petition for cancellation of the unions registration because
77
at the time the respondent union filed its petition, it still had the legal
personality to perform such act absent an order cancelling its registration.
Republic Act No. 9481, Sec. 9. A new provision, Article 245-A is inserted into
the Labor Code to read as follows:
ART. 245-A. Effect of Inclusion as Members of Employees Outside the
Bargaining Unit. - The inclusion as union members of employees outside
the bargaining unit shall not be a ground for the cancellation of the
registration of the union. Said employees are automatically deemed removed
from the list of membership of said union.
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
Other related labor relations disputes shall include any conflict between a labor union
and the employer or any individual, entity or group that is not a labor organization or
workers association. This includes: (1) cancellation of registration of unions and
workers associations; and (2) a petition for interpleader.
80
81
Adas notes: This implies earnest efforts exerted by the parties toward a
reasonable compromise or agreement acceptable to both parties. Contrast
this with the following concepts:
a) surface bargaining, which has been defined as "going through
the motions of negotiating" without any legal intent to reach an
agreement.
Note that the Supreme Court has even noted that the resolution of surface
bargaining allegations never presents an easy issue. The determination of
whether a party has engaged in unlawful surface bargaining is usually a difficult
one because it involves, at bottom, a question of the intent of the party in
question, and usually such intent can only be inferred from the totality of the
challenged partys conduct both at and away from the bargaining table. It
involves the question of whether an employers conduct demonstrates an
unwillingness to bargain in good faith or is merely hard bargaining. Standard
Chartered Bank Employees Union (NUBE) vs. Secretary Nieves Confesor and
Standard Chartered Bank, GR No. 11497, 16 June 2004.
82
c)
2.2 DUTY TO BARGAIN collectively does NOT compel any party to agree to any
proposal nor to make any concession by virtue thereof (Article 253, Labor Code), nor
are the parties obliged to reach an agreement. (Union of Filipro Employees vs. Nestle
Philippines, G.R. Nos. 158930-31, 03 March 2008).
Employer is not under obligation to bargain unless the Union shall have
been certified as the exclusive bargaining agent in a certification election
duly called for such purpose, and that the latter shall have forwarded to
the employer its bargaining demands.
When there is a collective bargaining agreement, the duty to bargain
collectively shall also mean that neither party shall terminate or modify
such agreement during its lifetime, EXCEPT during the freedom period
of at least sixty (60) days prior to the expiration day (freedom period).
Note AUTOMATIC RENEWAL CLAUSE as regards expired CBA. Under this
clause, the terms and conditions of the existing CBA shall continue to be in full
force and effect during the sixty-day freedom period (Union of Filipro Ees. vs. NLRC,
192 SCRA 414), or until a new CBA is reached. Thus, despite the lapse of the
effectivity of the old CBA, the law considers the same as continuing in full force
and effect until a new CBA is negotiated and entered into. (Lopez Sugar
Corporation vs. FFW, G.R. Nos. 75700-01, 30 Aug. 1990).
83
4. Union Security Clauses. -- applied to and comprehends "closed shop," "union shop,"
"maintenance of membership," or any other form of agreement which imposes upon
employees the obligation to acquire or retain union membership as a condition affecting
employment. (PICOP Resources, Inc. (PRI) vs. Anacleto L. Taneca et. al., G.R. No. 160828,
09 August 2010).
d) employees excluded from the union shop by express terms of the agreement.
(Bank of the Philippine Islands vs. BPI Employees Union - Davao Chapter Federation of Unions in BPI Unibank, G.R. No. 164301, 10 August 2010; En Banc.).
Closed Shop. A form of union security whereby only union members can be
hired and the workers must remain union members as a condition of
continued employment. (Juat vs. Court of Industrial Relations, 122 Phil. 794,
cited in Philippine Law Dictionary by Moreno, 2nd Edition.) It is one where no
person may be employed in any or certain agreed departments of the
enterprise unless he or she is, becomes, and, for the duration of the
agreement, remains a member in good standing of a union entirely comprised
of or of which the employees in interest are a part. (PICOP Resources, Inc.
(PRI) vs. Anacleto L. Taneca et. al., G.R. No. 160828, 09 August 2010).
Union Shop. There is union shop where an employer may hire new
employees, but once they become regular employees, they are required to
join the union within a certain period as a condition for their continued
employment. (PICOP Resources, Inc. (PRI) vs. Anacleto L. Taneca et. al.,
G.R. No. 160828, 09 August 2010).
85
(A) The company is correct because the CBA has expired; hence it is no longer bound to
provide union leave.
(B) The company is correct because the union has already consumed the allotted union
leave under the expired CBA.
(C) The union is correct because it is still the bargaining representative for the next two
(2) years.
(D) The union is correct because union leaves are part of the economic terms that
continue to govern until new terms are agreed upon.
(E) They are both wrong.
5.
b.
c.
6. 2010-2014 CASES:
6.1
6.2
Article 253 of the Labor Code mandates the parties to keep the status
quo and to continue in full force and effect the terms and conditions of
the existing agreement during the 60-day period prior to the expiration
of the old CBA and/or until a new agreement is reached by the
parties. The law does not provide for any exception nor
qualification on which economic provisions of the existing
agreement are to retain its force and effect. Likewise, the law
does not distinguish between a CBA duly agreed upon by the
parties and an imposed CBA like the one in the present case.
Hence, considering that no new CBA had been, in the meantime,
agreed upon by respondent GMC and the Union, the provisions of the
imposed CBA continues to have full force and effect until a new CBA
is entered into by the parties.
6.3
Answer: NO. Article 2523 of the Labor Code defines the phrase duty to bargain
collectively. For a charge of unfair labor practice to prosper, it must be shown
that the employer was motivated by ill-will, bad faith or fraud, or was oppressive to
labor. The employer must have acted in a manner contrary to morals, good
customs, or public policy causing social humiliation, wounded feelings or grave
anxiety. In this case, it cannot be said that MMC deliberately avoided the
negotiation. It merely sought a suspension and even expressed its
willingness to negotiate once the mining operations resume. There was
valid reliance on the suspension of mining operations for the suspension of
the CBA negotiation. The Union failed to prove bad faith.
6.4
ANSWER: NO. While the parties may agree to extend the CBAs original fiveyear term together with all other CBA provisions, any such amendment or term
in excess of five years will not carry with it a change in the unions exclusive
collective bargaining status.
By express provision of the above-quoted Article 253-A, the exclusive
bargaining status cannot go beyond five years and the representation status
is a legal matter not for the workplace parties (management and union) to
agree upon. In other words, despite an agreement for a CBA with a life of more
than five years, either as an original provision or by amendment, the bargaining
unions exclusive bargaining status is effective only for five years and can be
challenged within sixty (60) days prior to the expiration of the CBAs first five
years.
In the present case, the CBA was originally signed for a period of five years, XXX
with a provision for the renegotiation of the CBAs other provisions at the end of
the 3rd year of the five-year CBA term. Thus, prior to expiration on January 30,
3
2001 the workplace parties sat down for renegotiation but instead of confining
themselves to the economic and non-economic CBA provisions, also extended
the life of the CBA for another four months, i.e., from the original expiry date on
January 30, 2003 to May 30, 2003.
The negotiated extension of the CBA term has no legal effect on the FVCLUPTGWOs exclusive bargaining representation status which remained
effective only for five years ending on the original expiry date of January 30,
2003. Thus, sixty days prior to this date, or starting December 2, 2002, SANAMASIGLO could properly file a petition for certification election. Its petition, filed on
January 21, 2003 or nine (9) days before the expiration of the CBA and of
FVCLU-PTGWOs exclusive bargaining status, was seasonably filed.
6.5
The various questioned acts of petitioners show interference in the right to selforganization by the employees, namely: 1) sponsoring a field trip to Zambales for
its employees, to the exclusion of union members, before the scheduled
certification election; 2) the active campaign by the sales officer of petitioners
against the union prevailing as a bargaining agent during the field trip; 3) escorting
its employees after the field trip to the polling center; 4) the continuous hiring of
subcontractors performing respondents functions; 5) assigning union members to
the Cabangan site to work as grass cutters; and 6) the enforcement of work on a
rotational basis for union members.
Indubitably, the various acts of petitioners, taken together, reasonably support an
inference that, indeed, such were all orchestrated to restrict respondents free
exercise of their right to self-organization. The Court is of the considered view that
petitioners undisputed actions prior and immediately before the scheduled
88
2.
Requisites of a valid strike: (a) Must have a lawful purpose; (b) conducted
through lawful means; and (c) must be in compliance with the procedural
requirements under the Labor Code
Note 2 - All other forms of strikes, viz.: lightning strike, sit-down strike;
sympathetic strike, slowdown strike; wildcat strike; intermittent strike, are
all prohibited for lack of valid purpose or failure to comply with procedural
requirements (discussion below).
Note 4 - What are non-strikeable issues? Article 263 (b); Dept. Order
No. 9, Rule 12, Sec. 2
(a) Violations of CBA which are not gross in character shall be resolved
via the Grievance Machinery;
(b) Inter-union or intra-union disputes;
89
the legal requisites for valid disaffiliation during freedom period through a
majority vote in a secret balloting in accordance wth Art. 241 (d). Nava and
her group simply demanded that the hospital directly negotiate with the local
union which has not even registered as one. Xxx Consequently, the
mandatory notice of strike and conduct of strike vote were ineffective
for having been filed by an entity without legal personality.
Lastly, the strike is illegal due to the commission of violence, coercion,
intimidation and harassment against non-participating employees, and
blockage of free ingress to and egress out of the hospital premises. Union
officers having knowingly participated in an illegal strike lose their
employment status. However, union members who, despite having
participated in an illegal strike but did not actually participate in the
commission of illegal acts (violence threat etc), could not be dismissed
for lack of evidence showing actual commission of illegal acts. While
they may be reinstated, they will not be given backwages for the days when
they did not render work on account of the strike, following the principle of a
fair days wage for a fair days labor.
2.
MANILA DIAMOND HOTEL vs. MANILA DIAMOND HOTEL
EMPLOYEES UNION, G.R. No. 158075, 30 June 2006, -- Illegal strike (no
lawful purpose) where the strike was called by union which was not the
exclusive bargaining representative; reiteration of diff. liabilities
between union officers and union members; Unconditional offer to
return to work is not a valid basis for award of backwages during strike,
especially where the strike was illegal in the first place.
a. Strike had no valid purpose. Note that the Union was not certified as
the exclusive bargaining representative of the majority of the employees
of the rank-and-file, and hence, it could not demand from the Hotel the
right to collectively bargain in their behalf. Secondly, Union cannot
bargain only in behalf of its employees, insofar as it goes against the
objective of having a single employer-wide unit which is more to the
broader and greater benefit of the employees working force. The
philosophy is to avoid fragmentation of the bargaining unit so as to
strengthen the employees bargaining power with the management. To
veer away from such goal would be contrary, inimical and repugnant to
the objectives of a strong and dynamic unionism. Thirdly, Union violated
Art. 264 which proscribes the stating of a strike on ground of ULP
DURING THE PENDENCY OF CASES INVOLVING THE SAME
GROUNDS FOR STRIKE. Lastly, means employed in the conduct of
strike viz., obstruction of free engress and ingress, holding noise barrage
and threatening hotel guess, renders the strike illegal.
b. Distinctions as to liability of union officer vs. union member. - [a]ny
union officer who knowingly participates in an illegal strike and any worker
or union officer who knowingly participates in the commission of illegal
acts during strike may be declared to have lost his employment status . .
." On the other hand, an ordinary striking worker cannot be dismissed for
mere participation in an illegal strike. There must be proof that he
committed illegal acts during a strike, unlike a union officer who may be
dismissed by mere knowingly participating in an illegal strike and/or
committing an illegal act during a strike.
c. General rule as to entitlement of backwages,: For the general rule is
that backwages shall not be awarded in an economic strike on the
principle that "a fair days wage" accrues only for a "fair days labor." This
Court must thus hearken to its policy that "when employees voluntarily go
91
Article 264 (b) and (e), Labor Code; as amended Dept. Order No. 9, Rule
22, Sec. 12, pars. 1 and 2
(b) No person shall obstruct, impede or interfere with by force, violence,
coercion, threats or intimidation any peaceful picketing by employees during
any labor controversy, or in the eercise of the right of self-orgn., or collective
bargaining, or shall aid or abet such destruction or interference. No
employer shall use or employ any person to commit such acts, nor shall any
person be employed for such purpose (prohibition against strike-breakers
was added under Dept. Order No. 9).
(e) No person engaged in picketing shall commit any act of violence, coercion
or intimidation, or obstruct the free ingress to and egress from the
employers premises for lawful purposes, or to obstruct public
thoroughfares.
2.2.3 Guidelines for Conduct of PNP/AFP Personnel during Strikes, Lock-outs and
other Labor disputes, DOLE Memo dated 22 October 1987
1. Obstructions on places and thoroughfares devoted to public use,
such as the streets, sidewalks, alleys and the like are NUISANCES PER SE.
As such, they may be removed summarily by the local government authorities,
through their respective law enforcement authorities, and they may act
independently of the DOLE even if said obstructions are placed as a result of or
in connection with a pending labor strike.
2. However, obstructions on points of ingress/egress within private
properties during a labor dispute, although likewise prohibited by law, cannot be
summarily demolished by law enforcement authorites.
Instead, these
obstructions or barricades may be removed only in accordance with the proper
orders issued by the DOLE Office of the Secretary, or the NLRC, with proper
coordination between the said labor officials and the police authorites to ensure
that no undue harm is inflicted upon any person or property.
b. obstruct the free ingress to or egress from the employers premises for
lawful purposes or
c. obstruct public thoroughfares.
Even if the strike is valid because its objective or purpose is lawful, the
strike may still be declared invalid where the means employed are
illegal.
2.2.5 What are the liabilities of the workers who participated in the
commission of the prohibited activities as mentioned above are
committed during the conduct of the strike? Loss of employment status
Note1:
If the existence of force is pervasive and widespread,
consistently and deliberately resorted to as a matter of union policy,
responsibility is collective (meaning that all the union officers will be held
liable even if did not personally commit the same).
Otherwise,
responsibility is only individual. (Almira vs. BF Goodrich, 58 SCRA
1290)
Note2:
In order to hold the labor organization liable for the unlawful
acts of the individual officers, agents or members, there must be proof of
actual authorization or ratification of such acts after actual knowledge
thereof. Thus, where a union, through its officers, not only had
knowledge of the acts of violence committed by some of its strikers, but
either participated or ratified the same, the strike was held to be illegal
and the dismissal of ALL active participants therein was justified. (Phil.
Marine Officers Guild vs. Compania Maritima, 22 SCRA 1113).
Note 3: AIUP vs. NLRC, supra; see also Great Pacific Employees
Union vs. Great Pacific Life Assurance, February 11, 1999.
It follows therefore that the dismissal of officers of the striking union was justified
and valid. Their dismissal as a consequence of the illegality of the strike staged
by them find support in Article 264(a) of the Labor Code, pertinent portion of
which provides: Any union officer who knowingly participates in an illegal
strike and any union officer who knowingly participates in the commission of
illegal acts during a strike may be declared to have lost his employment
status
Union officers are duty bound to guide their members to respect the law. If
instead of doing so, the officers urge the members to violate the law and
defy the duly constituted authorities, their dismissal from the service is a
just penalty or sanction for their unlawful acts. The officers responsibility
is greater than that of the members.
FACTS:
Malayang Manggagawa and Nagkakaisang Lakas ng
Manggagawa sa Stayfast sought to be the exclusive bargaining agent of
Stayfast Philippines, Inc. Petitioner Malayang Manggagawa lost the
certification election and sought to appeal the decision but was later on
dismissed. Meanwhile, the Nagkakaisang Lakas ng Manggagawa
demanded to collectively bargain with the respondent company but it
refused. Nagkaisang Lakas went on strike but was later on restrained.
Thereafter, petitioner Malayang Manggagawa filed its own notice of strike
in the NCMB. The respondent company opposed the notice of strike
contending that the petitioner is a minority union. The parties were able to
make concessions during the conciliation proceedings and the notice of
strike was later on withdrawn.
However, on 21 July 1997, the petitioners members staged a sit down
strike to dramatize their demand for a fair and equal treatment as
respondent company allegedly continued to discriminate against them.
The respondent company issued a memorandum to all participants of the
sit down strike requiring them to explain why they should not be
terminated. None of the members complied with the company directive,
so they were all terminated by the respondent company. Consequently,
the petitioner staged a strike and filed a complaint for unfair labor
practice, union busting and illegal lockout.
ISSUE: Whether or not there is an illegal strike?
HELD: YES. The labor courts a quo all unanimously ruled that there
were no sufficient proof of respondent companys alleged discriminatory
acts, viz. that respondent company and its General Manager committed
unfair labor practice or that the termination of the employment of
petitioners officers and members was a case of union busting. On the
other hand, the sit down strike made by the petitioners officers
and members was in violation of respondent companys rules, and
petitioners officers and members ignored the opportunity given by
the respondent company for them to explain their misconduct,
which resulted in the termination of their employment. In sum, there
are abundance of reasons, both procedural and substantive, which are all
fatal to petitioners cause. The instant petition for certiorari suffers from an
acute scarcity of legal and factual support
The Labor Arbiter found the strike illegal and sustained the
dismissal of the Union officers but ordered the reinstatement of the
striking Union members for lack of evidence showing that they
committed illegal acts during the illegal strike. On appeal, NLRC
reversed Labor Arbiter and ruled that union members may also be
terminated. CA and SC sustained NLRC decision.
Question: Are the striking union members who were initially
ordered reinstated by the Labor Arbiter but later on, found to have
been legally terminated by the NLRC, entitled to backwages from
the time of the LA decision until the NLRC reversal?
94
Answer: YES. Pursuant to Article 223 of the Labor Code and wellestablished jurisprudence, the decision of the LA reinstating a
dismissed or separated employee, insofar as the reinstatement
aspect is concerned, shall immediately be executory, pending
appeal.
It is obligatory on the part of the employer to reinstate and pay the
wages of the dismissed employee during the period of appeal until
reversal by the higher court. If the employer fails to exercise the
option of re-admitting the employee to work or to reinstate him in
the payroll, the employer must pay the employees salaries during
the period between the LAs order of reinstatement pending appeal
and the resolution of the higher court overturning that of the LA.
In this case, CASI is liable to pay the striking Union members
their accrued wages for four months and nine days, which is
the period from the notice of the LAs order of reinstatement
until the reversal thereof by the NLRC.
2.3.2
2.3.3
Strike vote
approved by a majority of the TOTAL UNION
MEMBERSHIP in the bargaining unit (hence: only members of the
majority union may vote), via secret ballot, in a meeting or referenda
specially called for the purpose
95
Seven Day Strike ban (Dept. Order No. 9. R22, S7[e]) - after the strike
vote is taken, it is required that the union must file the result of the strike
vote with the NCMB at least 7 days prior to the intended date of strike.
Note1: Both cooling off period and 7-day strike ban must be
complied with and is mandatory. Otherwise, illegal strike. (National
Federation of Sugar Workers vs. Ovejera, 114 SCRA 354)
3.
3.2
3.3
b)
96
c)
3.4
5.
2010-2013 CASES
5.1
during the strike. Xxx There is no evidence that the ordinary union member had
actually committed illegal acts during the strike.
DEAN TONY AND ADA ABAD position: Article 264 was misapplied, as said
provision applies only to illegal strikes, and NOT to instances where there is a
DEFIANCE of a Return-to-work Order as in the instant case. This is simply
contradictory to all previous rulings, which we believe are better and more
appropriate.
5.2 Jurisdiction; Secretary of Labor. -- Cirtek Employees Labor Union-Federation of
Free Workers vs. Electronics, Inc., G.R. No. 190515, 15 November 2010.
Question: May the Secretary of Labor give an award higher than what was
agreed upon by the management and labor union, when he assumes
jurisdiction over the labor dispute?
Answer: YES. The Secretary of Labor exercises plenary discretionary
The Secretary of Labor gravely abused her discretion when she used
the middle ground approach and relied on the unaudited financial
statements.
Said unaudited financial statements are self-serving and
inadmissible, and may have resulted in a wage award that is based on an
inaccurate and biased picture of petitioner corporations capacity to pay. Moreso,
she violated her own Order dated 19 December 2003, which instructed the
petitioner company to submit its complete audited financial report.
5.4
Question: Are ordinary workers who were reinstated due to dismissal for
their participation in an illegal strike, entitled to payment of backwages?
98
Answer: NO. Conformably with the long honored principle of a fair day's wage for
a fair day's labor, employees dismissed for joining an illegal strike are not entitled
to backwages for the period of the strike even if they are reinstated by virtue of
their being merely members of the striking union who did not commit any illegal
act during the strike.
By its use of the phrase unjustly dismissed, Article 279 refers to a dismissal that
is unjustly done, that is, the employer dismisses the employee without observing
due process, either substantive or procedural. Substantive due process requires
the attendance of any of the just or authorized causes for terminating an
employee as provided under Articles 278, 283 or 284 of the Labor Code; while
procedural due process demands compliance with the twin-notice requirement.
5.5
to go on strike. Unfortunately, they were barred from entering the premises and
were told to look for new jobs.
Surely the absence of petitioners in the morning of November 7, 2006 cannot in
any way be construed as a concerted action, as their absences are presumed to
be for valid causes, in good faith, and in the exercise of their right to avail
themselves of CBA or company benefits. Moreover, Biomedica did not prove that
the individual absences can be considered as temporary stoppage of work.
Biomedicas allegation that the mass leave paralyzed the company operation on
that day has remained unproved.
N. LAW ON TERMINATION
BASIC PRINCIPLES IN DISCIPLINARY CASES
1. Code of Conduct vs. security of tenure
Balancing of interests in disciplinary cases
1.1 Labors interests
100
1.2
Burden of proof is upon the employer to show just cause for the
imposition of a penalty upon the employee. Hence, there must
exist substantial evidence to prove just or authorized cause of
termination. Proof beyond reasonable doubt not required in
administrative cases.
Note1: Failure of employer to submit documents which are presumed to
be in its possession, inspite of an Order to do so, implies that the
presentation of said documents is prejudicial to its case. (De Guzman
vs. NLRC, 540 SCRA 210 [Dec. 2007]).
Note2:
IMPORTANT PERALTA CASE ON SUBSTANTIAL
EVIDENCE. (Alilem Credit Cooperative vs. Bandiola, G.R. No.
173489, 25 February 2013, J. Peralta).
Question: Whether or not sworn statements of relatives and friends of
respondent attesting to the existence of an extra-marital affair is
sufficient to prove immorality, as a just cause for termination?
Answer: YES. The employers evidence consists of sworn statements
of either relatives or friends of Thelma and respondent. They either had
direct personal knowledge of the illicit relationship or revealed
circumstances indicating the existence of such relationship.
While respondents act of engaging in extra--marital affairs may be
considered personal to him and does not directly affect the performance
of his assigned task as bookkeeper, aside from the fact that the act was
specifically provided for by petitioners Personnel Policy as one of the
grounds for termination of employment, said act raised concerns to
petitioner as the Board received numerous complaints and petitions from
the cooperative members themselves asking for the removal of
respondent because of his immoral conduct.
b)
from the game, and then he untied his shoelaces and donned his
practice jersey. In Game Number 5, he did not play.
Case for Negros Slashers: (a) basketball organization is a "teambased" enterprise and that a harmonious working relationship among
team players is essential to the success of the organization; (b) Teng
"abandoned" them during a crucial Game Number 5 in the MBA
championship round.
Supreme Court: We find that the penalty of dismissal handed out
against Teng was indeed too harsh. As an employee of the Negros
Slashers, Teng was expected to report for work regularly. Missing a
team game is indeed a punishable offense. Untying of shoelaces when
the game is not yet finished is also irresponsible and unprofessional.
However, we agree with the Labor Arbiter that such isolated
foolishness of an employee does not justify the extreme penalty of
dismissal from service. Petitioners could have opted to impose a
fine or suspension on Teng for his unacceptable conduct.
c)
Thus: for valid termination, there must both be JUST CAUSE AND
DUE PROCESS. (exception: Agabon ruling, see Section 4 hereunder)
MANAGEMENT
VS.
Management prerogatives
Right to discipline
employee in accordance
with rules and regulations
LABOR
Security of tenure
Right to continuous
employment until
termination for just or
authorized cause
STATE
Police power/social justice
Interpretation in favor of labor
102
SERIOUS MISCONDUCT
105
II.
CASES:
107
Decision:
There was no illegal dismissal; however, there was no
abandonment either.
1. There was no illegal dismissal; documentary evidence reveals that the
employee was merely suspended with a directive to return to work.
However, employee could not be considered to have abandoned his work
because mere absence is not enough to amount to abandonment, as in
fact, he filed a case a few days after he was supposed to have reported
back to work.
2.
REMEDY:
failure of employees to report to work, the Supreme Court did not accept the
companys argument that they were terminated for unjustifiably refusing to
report for duty in their new posts where they were transferred. A careful
review of records reveal that there is no showing that employees were
notified of transfer and hence, cannot be considered as having abandoned
their work. Moreover, it appears that employees were relieved of their posts
because they filed a complaint for underpayment of wages with the NLRC.
IMPORTANT CASE -- Dismissal; gross and habitual neglect. St. Lukes
Medical Center, Inc. and Robert Kuan vs. Estrelito Nazario, G.R. No. 152166,
October 20, 2010. -- Under Article 282 (b) of the Labor Code, an employer
may terminate an employee for gross and habitual neglect of duties. Gross
negligence connotes want of care in the performance of ones
duties. Habitual neglect implies repeated failure to perform ones duties for a
period of time, depending upon the circumstances. A single or isolated act
of negligence does not constitute a just cause for the dismissal of the
employee. Assuming arguendo that respondent was negligent, although the
Court found otherwise, the lapse or inaction could only be regarded as a
single or isolated act of negligence that cannot be categorized as habitual
and, hence, not a just cause for his dismissal. .
Inefficiency of employee; condonation by employer; Bebina G.
Salvaloza vs. National Labor Relations Commission, Gulf Pacific
Security Agency, Inc., and Angel Quizon, G.R. No. 182086, November
24, 2010. -- While it is acknowledged that petitioner Gregorios service record
shows that his performance as a security guard was below par, respondent
Gulf Pacific never issued any memo citing him for the alleged repeated
errors, inefficiency, and poor performance while on duty, and instead
continued to assign him to various posts. This amounts to condonation by
Gulf Pacific of whatever infractions Gregorio may have committed. Even
assuming the reasons for relieving Gregorio of his position were true, it was
incumbent upon Gulf Pacific to be vigilant in its compliance with labor laws.
110
f)
g)
Failure to report five tires damaged as a result of undercuring brought about by negligence of another
employee.
111
Respondent alleged in his letters dated July 21, 2003 and August
12, 2003 that he is not capable of returning to work, because he is
still undergoing medications and therapy. However, apart from the
clearance of respondent's doctors allowing him to return to work,
he has failed to provide competent proof that he was actually
undergoing therapy and medications. It is puzzling why despite
respondent's submission that he was still undergoing treatment in
July and August 2003, he failed to submit official receipts showing
the medical expenses incurred and physicians professional fees
paid by reason of such treatment. This casts serious doubt on the
true condition of the respondent during the prolonged period he
was absent from work and investigations, and as to whether he is
still suffering from any form of illness from July to August 2003.
Being the National Sales Manager, respondent should have
reported back to work or attended the investigations conducted by
petitioner immediately upon being permitted to work by his
doctors, knowing that his position remained vacant for a
considerable length of time. During his absence, nobody was
performing the duties of NSM, which included, among others,
supervising and monitoring of respondent's sales area which is
vital to the companys orderly operation and viability. He did not
even show any sincere effort to return to work. Since there is no
more hindrance for him to return to work and attend the
investigations set by petitioner, respondent's failure to do so was
without any valid or justifiable reason. Respondent's conduct
shows his indifference and utter disregard of his work and his
employer's interest, and displays his clear, deliberate, and gross
dereliction of duties.
g.3) MANAGER VALIDLY TERMINATED ON ACCOUNT OF LOSS
OF TRUST AND CONFIDENCE ARISING FROM HUGE BUSINESS
LOSSES DUE TO HER GROSS NEGLIGENCE IN ALLOWING 2,130
PCS OF CHICKEN JOY REJECTS TO BE KEPT INSIDE FREEZER
AND CAUSING FOOD CONTAINATION AND THREAT TO FOOD
SAFETY. (Cecilia Manese vs. Jollibee Foos, G.R. No. 17-454, 11
October 2012., J. Peralta.)
h) IMPORTANT CASE; NOT ASKED IN 2012 AND 2013 BAR: Prudential
Bank vs. Antonio Mauricio et al., GR 183350, 18 Jan 2012.
QUESTION: MAY A MANAGER BE TERMINATED FOR LOSS OF
TRUST AND CONFIDENCE FOR AN ACT WITHIN HIS
DISCRETIONARY POWERS?
112
MAY
THERE
BE
INSUBORDINATION WHEN THE ACT COMPLAINED OF IS
WITHIN THE DISCRETIONARY POWER OF THE MANAGER?
(ePacific Global Contact Center vs. Cabansay, 538 SCRA 498 [23 Nov. 2007];
CONTRA
CASE,
QUESTION:
Emphasis supplied.)
Answer: YES. In this case, a Senior Training Manager was told by her
boss not to hold a presentation and training that day, and to revise the
training program. She emailed him, as follows: This is a very simple
presentation and I will not postpone it. It is very easy to comprehend as
per your instruction, we will be implementing it next week. So when
should we present this to the team leaders? Lets not make simple things
complicated. I will go on with the presentation this afternoon. When
asked to explain the infraction, the manager stated that clearly it was not
my intention to willfully disregard your order because I was thinking it was
for the best of the company. Management did not consider the
explanation as justifiable and terminated her.
The Supreme Court ruled there was valid cause for termination.
[A]lthough a managerial employee is clothed with discretion to determine
what was in the best of the company, said managerial discretion is not
without limits. Its parameters were contained the moment the
discretion was exercised, and then opposed by the immediate
superior/officer for being against the policies and welfare of the
company. Hence, any action in pursuit of the discretion thus
opposed had ceased to be discretionary and could be considered as
willful disobedience.
ADAS NOTES: The difference between this case and that of ePacific
Global is that the Manager in Prudential Bank had exercised discretionary
powers and was not prohibited nor questioned in doing so until much later
after the audit findings. In ePacific Global, the Managers superior had
already prohibited her from proceeding with the presentation, and she
insisted on continuing the same.
i) QUESTION: MAY AN EMPLOYEE BE DISMISSED FOR FRAUD IF THE
COMPANY DID NOT SUFFER FROM IT?
113
Answer: YES. In the case of Panuncillo vs. CAP, G.R. No. 161305, 09
February 2007 (Carpio-Morales), the employee caused the double sale
of her own childs CAP educational plan to different customers.
Employee argued that she cannot be terminated for loss of trust and
confidence, because CAP was not itself defrauded or been damaged by
her actuations relative to the multiple sale of her childs educational plan
to customers. The Supreme Court ruled that she may still be terminated
for loss of trust and confidence, because deliberate disregard or
disobedience of rules by the employees cannot be countenanced. The
lack of resulting damage was unimportant. xxx. Damage aggravates
the charge but its absence does not mitigate nor negate the
employees liability."
QUESTION: MAY AN EMPLOYEE BE DISMISSED FOR FRAUD
AND/OR DISHONESTY, EVEN IF HE DID NOT PERSONALLY
BENEFIT FROM IT?
Answer: YES. Pecuniary gain is not a necessary element for
terminations due to loss of trust and confidence. Even the return of
misappropriated funds will not negate valid dismissal for breach of
trust. This Court has held that misappropriation of company funds,
although the shortages had been fully restored, is a valid ground to
terminate the services of an employee of the company for loss of trust
and confidence. (Santos vs. San Miguel Corp., 254 SCRA 673 [1996]).
In the case of Dela Cruz V. Coca-Cola Bottlers (31 July 2009), an
employee was involved in a motor vehicle accident while driving CocaCola vehicle without authorization. He was hospitalized in San Fernando,
La Union, where he was observed to have been under the influence of
alcohol. This was evidenced by a medical certificate and police report
secured by Coca-cola. Two friends of the employee (one was a
supervisor) secured a police report and medical certificate omitting any
reference to employee being drunk, for which they were charged with
DISHONESTY. After due process, they were dismissed and they
thereafter questioned the termination on the ground that: (a) they did not
occupy positions of trust and confidence; and (b) they did not benefit from
the fraud. The Supreme Court ruled that the supervisor and friend were
VALIDLY TERMINATED. By obtaining an altered police report and
medical certificate, petitioners deliberately attempted to cover up the fact
that Sales was under the influence of liquor at the time of accident. In so
doing, they committed acts inimical to company interest work-related
wilful breach of trust and confidence.
See also: Unilever vs. Ma. Ruby Rivera, G.R. No. 201701, 03 June
2013, where Unilevers internal auditor conducted a random audit and
found out that there were fictitious billings and fabricated receipts
supposedly from Ventureslink amounting to P11,200,000.00. It was also
discovered that some funds were diverted from the original intended
projects. Upon further verification, Ventureslink reported that the fund
deviations were upon the instruction of Rivera. The employee admitted
the fund diversion but explained that such actions were mere resourceful
utilization of budget because of the difficulty of procuring funds from the
head office.
Supreme Court decision: In this case, Rivera was dismissed from work
because she intentionally circumvented a strict company policy,
manipulated another entity to carry out her instructions without the
companys knowledge and approval, and directed the diversion of funds,
which she even admitted doing under the guise of shortening the
114
2.1.5
Torreda vs. Toshiba Info Equipment Phils. 515 SCRA 133 [Feb 2007]). -- This
will also include false accusation by the employee of his immediate superior
of a crime such as robbery, as such is tantamount to serious misconduct
INCOMPETENCE
EDI Staff Builders vs.NLRC, 537 SCRA 409 [Oct 2007]. -- An allegation
of incompetence should have a factual foundation and may be shown by
weighing it against a standard, benchmark or criterion.
IMMORALITY This has been defined as such conduct which conflicts with generally or
traditionally held moral principles. It is akin to the phrase moral
turpitude, the term implying something immoral in itself, regardless of
whether it is punishable by law or not.
Toledo vs. Toledo, 544 SCRA 27 [06 February 2008]; case on
common live-in relationships.
The Court has previously defined
immoral conduct as that conduct which is willful, flagrant or shameless,
115
and which shows a moral indifference to the opinion of the good and
respectable members of the community. In disbarment cases however,
this Court has ruled that the mere fact of sexual relations between two
unmarried adults is not sufficient to warrant administrative sanction for
such illicit behavior. Whether a lawyers sexual congress with a woman
not his wife or without benefit of marriage should be characterized as
grossly immoral conduct will depend on the surrounding circumstances.
The Supreme Court further ruled that intimacy between a man and a
woman who are not married, where both suffer from no impediment to
marry, voluntarily carried on and devoid of any deceit on the part of the
respondent, is neither so corrupt as to constitute a criminal act nor so
unprincipled as to warrant disbarment or disciplinary against a member of
the Bar. As such, the Court cannot conclude that this act of
cohabiting with a woman and betting children by her without benefit
of marriage falls within the category of grossly immoral conduct.
3.2
3.3
a)
The losses expected should be substantial and not merely de
minimis in extent. -b)
The substantial losses apprehended must be reasonably
imminent;
c)
The retrenchment must be reasonable necessary and likely to
effectively prevent the expected losses; and
d)
The alleged losses, if already incurred and the expected imminent
losses sought to be forestalled, must be proved by sufficient and
convincing evidence.8
This means that retrenchment must be reasonably necessary and is likely
to prevent business losses which, if already incurred, must be
substantial, serious, actual and real, OR if only expected , are
reasonably imminent as perceived objectively and in good faith by the
employer.
In addition, the employer should have taken other measures prior or
parallel to retrenchment to forestall losses, e.g., cut other costs. Thus,
the Supreme Court has ruled that the retrenchment undertaken by a
company to be invalid where it was shown that the company likewise
continued to dispense fat executive bonuses to its officers.
Virgilio Anabe vs. AsiaKonstruct, G.R. No. 183233, 23 December
2009; financial statements as proof of serious business losses. -Anabe was a radio technician operator who was retrenched on account of
alleged serious business reversal. Labor Arbiter for complainant, on
account of failure of company to prove serious business losses. On
appeal to NLRC, company submitted financial statement, and as such,
NLRC reversed the Labor Arbiters ruling. .
Supreme Court ruling as to financial statement. While NLRC may
receive evidence on appeal, note that the burden of proof is upon the
employer. Company inexplicably submitted financial statements TWO
YEARS after the case was filed and pending, and ONLY AFTER it had
received the adverse decision of the Labor Arbiter. The delay in the
submission of the evidence should be clearly explained and should
adequately prove the employers allegations of the cause of termination.
In this case, Asiakonstruct proferred no explanation behind the belated
submission. Moreover, the financial statements covering period 19982000 was prepared only in 2001 which begs the question of how the
management knew at such date of the companys huge losses to justify
Anabes retrenchment in 1999. Lastly, SEC certification that no financial
statements were submitted for the period 1998-2000, and 2003-2005,
thereby lending credence to Anabe;s theory that the financial statements
submitted on appeal may have been fabricated. Indeed, AsiaKonstruct
could have easily submitted its financial statements during the pendency
of the proceedings at the arbitral level.
so long as it is done in good faith to advance its interests, and not for the
purpose of defeating or circumventing the rights of the employees.
b. Dismissal; closure of business in bad faith. Peafrancia Tours
and Travel Transport, Inc. vs. Joselito P. Sarmiento and Ricardo S.
Catimbang, G.R. No. 178397, October 20, 2010. -- Petitioner terminated
the employment of respondents on the ground of closure or cessation of
operation of the establishment which is an authorized cause for
termination under Article 283 of the Labor Code. While it is true that a
change of ownership in a business concern is not proscribed by law, the
sale or disposition must be motivated by good faith as a condition for
exemption from liability. In the instant case, however, there was, in fact,
no change of ownership. Petitioner did not present any documentary
evidence to support its claim that it sold the same to ALPS
Transportation. On the contrary, it continuously operates under the same
name, franchises and routes and under the same circumstances as
before the alleged sale. Thus, no actual sale transpired and, as such,
there is no closure or cessation of business that can serve as an
authorized cause for the dismissal of respondents.
c. IMPORTANT PERALTA CASE ON GUIDELINES IN CLOSURE
OF BUSINESS:
The Supreme Court made the following summary of principles and
guidelines in the case of Manila Polo Club Employees Union (MPCEUFUR-TUCP) vs. Manila Polo Club, G.R. No. 172846, 24 July 2013, as
follows:
1. Closure or cessation of operations of establishment or
undertaking may either be partial or total.
2. Closure or cessation of operations of establishment or
undertaking may or may not be due to serious business losses
or financial reverses. However, in both instances, proof must be
shown that: (1) it was done in good faith to advance the
employer's interest and not for the purpose of defeating or
circumventing the rights of employees under the law or a valid
agreement; and (2) a written notice on the affected employees
and the DOLE is served at least one month before the intended
date of termination of employment.
3. The employer can lawfully close shop even if not due to serious
business losses or financial reverses but separation pay, which
is equivalent to at least one month pay as provided for by
Article 283 of the Labor Code, as amended, must be given to
all the affected employees.
4. If the closure or cessation of operations of establishment or
undertaking is due to serious business losses or financial
reverses, the employer must prove such allegation in order to
avoid the payment of separation pay. Otherwise, the affected
employees are entitled to separation pay.
5. The burden of proving compliance with all the above-stated falls
upon the employer.
Guided by the foregoing, the Court shall refuse to dwell on the issue of
whether respondent was in sound financial condition when it resolved to
120
2014 CASE:
Stanley Livesey vs. Binswanger Philippines, Inc. And Keith Elliot, G.R No.
177493, 19 March 2014. J. Brion).
Where a new corporation is formed and used for a non-legitimate purpose
(viz., evasion of a just and due obligation of the old corporation to pay its
employee Livesey his monetary entitlements under a compromise
agreement), then the wrongful intent should not be condoned. The new
corporation should be held liable for the closed corporations unfulfilled
obligations to the latters employee Livesey.
It has long been settled that the law vests a corporation with a personality
distinct and separate from its stockholders or members. In the same
vein, a corporation, by legal fiction and convenience, is an entity shielded
by a protective mantle and imbued by law with a character alien to the
persons comprising it. Nonetheless, the shield is not at all times
impenetrable and cannot be extended to a point beyond its reason
and policy. Circumstances might deny a claim for corporate
personality, under the doctrine of piercing the veil of corporate
fiction.
Piercing the veil of corporate fiction is an equitable doctrine developed to
address situations where the separate corporate personality of a
corporation is abused or used for wrongful purposes.44 Under the
doctrine, the corporate existence may be disregarded where the entity is
formed or used for nonlegitimate purposes, such as to evade a just and
due obligation, or to justify a wrong, to shield or perpetrate fraud or to
carry out similar or inequitable considerations, other unjustifiable aims or
intentions, in which case, the fiction will be disregarded and the
individuals composing it and the two corporations will be treated as
identical.
In the present case, we see an indubitable link between CBBs
closure and Binswangers incorporation. CBB ceased to exist only
in name; it reemerged in the person of Binswanger for an urgent
purpose to avoid payment by CBB of the last two installments of
its monetary obligation to Livesey, as well as its other financial
liabilities. Freed of CBBs liabilities, especially that owing to
Livesey, Binswanger can continue, as it did continue, CBBs real
estate brokerage business.
3.6
VS.
4.2 On the other hand, resignation is the voluntary act of an employee who is
in a situation where one believes that personal reasons cannot be
sacrificed in favor of the exigency of the service, and one has no other
choice but to dissociate oneself from employment. It is a formal
pronouncement or relinquishment of an office, with the intention of
relinquishing the office accompanied by the act of relinquishment. As the
intent to relinquish must concur with the overt act of relinquishment, the
acts of the employee before and after the alleged resignation must be
considered in determining whether he or she, in fact, intended to sever his
or her employment.
4.3
Gan could not have been coerced. Coercion exists when there is a
reasonable or well-grounded fear of an imminent evil upon a person or his
property or upon the person or property of his spouse, descendants or
ascendants. Neither do the facts of this case disclose that Gan was
intimidated.
What the records of this case reveal is that Gan deliberately wrote and filed
a resignation letter that is couched in a clear, concise, and categorical
language. Its content confirmed his unmistakable intent to resign. He was a
managerial employee holding a responsible position and receiving more
than the mandated minimum wage. At the time he resigned, he had more
than a decade of experience in sales and marketing with expertise in
product management. Indeed, it would be absurd to assume that he did not
understand the full import of the words he used in his resignation letter and
the consequences of executing the same. (Gan vs. Galderma Phils. G.R.
No. 177167, 17 January 2013, J. Peralta).
separation pay.
Exception: Unless stipulated in an employment contract or CBA or
sanctioned by established employer practice or policy.
(CJC Trading, Inc. vs. NLRC, 246 SCRA 724 [1995]; Alfaro vs.
Court of Appeals, 363 SCRA 799 [2001]).
3.
Wenphil vs. NLRC ruling (for terminations occurring prior to 2000) -Because of failure to comply with the Constitutional right to due process,
the employer may be penalized a fine (of P3,000.00 to P10,000.00,
depending upon discretion of the SC).
If the dismissal is based on a just cause under Article 282 but the
employer failed to comply with the notice requirement, the
sanction to be imposed upon him should be tempered because
the dismissal process was, in effect, initiated by an act imputable
to the employee. Hence: P30,000.00 nominal damages for
non-compliance with due process, because employee has
committed a wrongoing
5. Should employee seek damages on this account, may file with regular court.
[Governed exclusively by the Civil Code. (Shoemart vs. NLRC, supra.)]
QUESTION:
HOW
SPECIFIC
SHOULD
THE
CAUSE/CHARGE SHEET (PLEASE EXPLAIN MEMO) BE?
SHOW
6.2 HEARING:
The existence of a formal trial-type hearing, ALTHOUGH PREFERRED, is
NOT absolutely necessary to satisfy an employees right to be heard.
(Esguerra vs. Valle Verde Country Club, 672 SCRA 177 [2012]). - a hearing or a conference during which the employee concerned, with
the assistance of counsel if he so desires, is given the opportunity to
respond to the charge, to present his evidence, or to rebut the
evidence presented against him.
note that a formal hearing (as in the manner of regular courts) is not
required; only substantial evidence is necessary.
There is no necessity for a formal hearing where an employee admits
responsibility for the alleged misconduct. It is sufficient that she be
informed of the findings of management and the basis of its decision
to dismiss her.
6.3 Right to counsel on the part of the employee is this mandatory and
indispensable as part of due process?
126
NO. In the case of Lopez vs. Alturas Group, 11 April 2011, the Supreme
Court ruled that the right to counsel and the assistance of one in
investigations involving termination cases is neither indispensable nor
mandatory, except when the employee himself requests for one or that he
manifests that he wants a formal hearing on the charges against him.
period and such reinstatement order is reversed with finality, the employee is
not required to reimburse whatever salary he received for he is entitled to
such, more so if he actually rendered services during the period. (Roquero
vs. Philippine Airlines, Inc., 401 SCRA 424 [2003], cited in Garcia vs. PAL,
G.R. No. 164856, 20 January 2009; En Banc).
Exception:
After the Labor Arbiters decision is reversed by a higher tribunal, the
employee may be barred from collecting the accrued wages, if it is shown
that the delay in enforcing the reinstatement pending appeal was without fault
on the part of the employer. (Garcia vs. Phlippine Airlines, G.R. No. 164856,
20 January 2009; En Banc).
The test is two-fold: (1) there must be actual delay or the fact that the order of
reinstatement pending appeal was not executed prior to its reversal; and (2)
the delay (or non-execution) must not be due to the employers unjustified act
or omission. (ibid.)
General Rule 1: Director or corporate officer is not personally liable for the
debts of the corporation. Presumption of good faith prevails.
Exception: When director or corporate officer is found to be in bad faith in the
discharge of the duties and responsibilities.
Carmen Dy-Dumalasa Vs. Domingo Sabado S. Fernandez, et. al., G.R. No.
178760 [23 July 2009]. -- Thus, in order to hold a a director personally liable for
debts of the corporation, and thus pierce the veil of corporate fiction, the bad faith
or wrongdoing of the director must be established clearly and convincingly. Bad
faith is never presumed. Bad faith does not connote bad judgment or negligence.
Bad faith imports a dishonest purpose. Bad faith means breach of a known duty
through some ill motive or interest. Bad faith partakes of the nature of fraud.
Ineluctably, absent a clear and convincing showing of the bad faith in effecting
the closure of HELIOS that can be individually attributed to petitioner as an
officer thereof, and without the pronouncement in the Decision that she is being
held solidarily liable, petitioner is only jointly liable.
General Rule 2: If there is a finding of bad faith, then corporate officer to be held
jointly liable with the company for the damages.
Exception: When Decision explicitly pronounces solidary liability.
In labor cases, the corporate directors and officers are solidarily liable with the
corporation for the termination of employment of employees done with malice or
in bad faith. Indeed, moral damages are recoverable when the dismissal of an
employee is attended by bad faith or fraud or constitutes an act oppressive to
labor, or is done in a manner contrary to good morals, good customs or public
policy. The term bad faith contemplates a state of mind affirmatively operating
with furtive design or with some motive of self-interest or will or for ulterior
purpose. -- Lynvil Fishing Enterprises, Inc. vs. Andres G. Ariola, et al., G.R. No.
181974, 01 February 2012
10. ON BACKWAGES
10.1 FULL BACKWAGES For termination effected after effectivity of
RA 6715
FULL backwages to be computed from the time of termination to the
time of actual reinstatement.
With the passage of RA 6715 which took effect on 21 March 1989,
Article 2709 of the Labor Code was thus amended to include payment of
full backwages. The Mercury drug rule which limited the award of
129
a) Ordinary concept
An attorneys fee is the reasonable compensation paid to a lawyer by his
client for the legal services the former renders; compensation is paid for the
cost and/or results of legal services per agreement or as may be assessed.
b) Extra-ordinary concept
Attorneys fees are deemed indemnity for damages ordered by the court to
be paid by the losing party to the winning party.
In Article 2208 of the Civil Code on actions for recovery of wages, it is
payable not to the lawyer but to the client, unless there is an agreement
between them to the contrary.
Article III of the Labor Code is an exception to the declared policy of strict
construction in the award of attorneys fees. Although an express finding of
facts and law is still necessary to prove the merit of the award, there need
not be any showing that the employer acted maliciously or in bad faith when
it withhold the wages.
Hence, as a result of illegal dismissal, wages are withheld without valid and
legal basis. Consequently, complainant is entitled to an award of attorneys
fees in his favor.
2013 CASE: Czarina Malvar s. Krafts Foods Phils, G.R. No. 183952, 09
September 2013.
QUESTION:
MAY
THE
COMPLAINANTS
LAWYER
(JUSTICE
BELLOSILLO), WHO HAD ACCEPTED THE CASE ON CONTINGENCY
BASIS BUT WAS TERMINATED PRIOR TO THE SETTLEMENT OF THE
CASE, MAY STILL CLAIM ATTORNEYS FEES?
Case for lawyer:
It was certain that the compromise agreement was
authoried by respondents to evade a possible loss of P182 Million or more as a
result of the labor litigation. As counsel, he did everything legally possible to
serve and protet her interest.
Case for client: No such intention to defraud intervenor of his professional
fees. However, the law firm had already ceased after a partner resigned and
another partner was appointed to a government position.
Supreme Court: For lawyer (Ret. Justice Bellosillo). Intervenor lawyer is still
entitled to recover from the Petitioner the full comopensation he deserves as
131
stipulated in the contract. Note that all the elements for full recovery of the
INtervenors compensation are present:
It is basic that an attorney is entitled to have and receive a just and reasonable
compensation for services performed at the special instance and request of his
client. The attorney who had acted in good faith and honesty in representing
and serving the interests of the client should be reasonably compensated for
his service.
and Fred Olsen Cruise Lines, Ltd., G.R. No. 190545, November 22, 2010. -Petitioners illness already existed when he commenced his fourth contract of
employment with respondents, hence, not compensable. Given that the
employment of a seafarer is governed by the contract he signs every time he is
rehired and his employment is terminated when his contract expires,
petitioners illness during his previous contract with respondents is deemed
pre-existing during his subsequent contract. That petitioner was subsequently
rehired by respondents despite knowledge of his seizure attacks does not
make the latter a guarantor of his health.
IMPORTANT PERALTA CASE: Where death was due to willful act of the
OFW even if arising out of alleged mental illness, then this is NOT
compensable. (Crewlink vs. Editha Teringterring, G.R. No. 166803, 11
October 2012, J. Peralta).
her bare allegation that her husband was suffering from a mental
disorder, no evidence, witness, or any medical report was given to
support her claim of Jacinto's insanity. The record does not even show
when the alleged insanity of Jacinto did start. Homesickness and/or
family problems may result to depression, but the same does not
necessarily equate to mental disorder. The issue of insanity is a
question of fact; for insanity is a condition of the mind not
susceptible of the usual means of proof.
3. Compensability of injury; right of seafarer to seek second opinion. -- NYK-Fil
Ship Management Inc., et al vs. Alfonso T. Talavera, G.R. No. 175894, 14
November 2008; Carpio-Morales. See also: Virgen Shipping Corp. et. al. vs.
Jesus B. Barraquio, G.R. No. 178127, 16 April 2009
The right of a seafarer to seek a second opinion is recognized by the POEA
Standard Employment Contract of 2000, the CBA governing the relationship
between petitioners and respondent, and jurisprudence.
For disability to be compensable under 2000 POEA Standard Employment
Contract, it must be the result of a work-related injury or illness, unlike the
1996 POEA Standard Employment Contract in which it was sufficient that the
seafarer suffered injury or illness during the term of his employment. The
2000 POEA Standard Employment Contract defines "work-related injury" as
"injury(ies) resulting in disability or death arising out of and in the course of
employment" and "work-related illness" as "any sickness resulting to disability or
death as a result of an occupational disease listed under Section 32-A of this
contract with the conditions set therein satisfied." In the case at bar, a reasonable
connection between the respondent's injuries and the nature of his job has been
established and hence, approved permanent partial disability (filler/metal welder vs.
chronic back pain)
4.
Section 10, Republic Act No. 8042 on 3-month cap on backwages for illegal
dismissal is UNCONSTITUTIONAL insofar as it is violative of the equal
protection of laws and discriminatory against migrant workers with long-term
contracts. -- Claudio S. Yap vs. Thenamaris Ships Management and Intermare
Maritime Agencies, Inc., G.R. No. 179532, May 30, 2011.
Petitioner Yap was employed as an electrician for respondents vessel under a 12month contract. He was found to be illegally terminated with nine months remaining
on his contract term. The Court of Appeals (CA) awarded petitioner salaries for
three months as provided under Section 10 of Republic Act No. 8042. On certiorari,
the Supreme Court reversed the CA and declared that petitioner was entitled to his
salaries for the full unexpired portion of his contract.
The Court has previously declared in Serrano v. Gallant Maritime Services, Inc.
(2009) that the clause or for three months for every year of the unexpired term,
whichever is less provided in the 5th paragraph of Section 10 of R.A. No. 8042 is
unconstitutional for being violative of the rights of Overseas Filipino Workers
(OFWs) to equal protection of the laws. The subject clause contains a suspect
classification in that, in the computation of the monetary benefits of fixed-term
employees who are illegally discharged, it imposes a 3-month cap on the claim of
OFWs with an unexpired portion of one year or more in their contracts, but none on
the claims of other OFWs or local workers with fixed-term employment. The subject
clause singles out one classification of OFWs and burdens it with a peculiar
disadvantage. Moreover, the subject clause does not state or imply any definitive
governmental purpose; hence, the same violates not just petitioners right to equal
134
protection, but also his right to substantive due process under Section 1, Article III
of the Constitution.
4.1
5.
Employment Contract (SEC) he signed, and said seafarer NEVER questioned the
company-designated doctors competence until he filed a petition with the courts. On
the contrary, he accepted the company doctors assessment of his fitness and even
executed a certification to this effect (Vergara vs. Hammonia Maritime Services, Inc.
[G.R. No. 172933, 06 October 2008], cited in Nazareno vs. Maersk Filipinas, G.R.
No. 168703, 26 February 2013, J. Peralta).
If the 120 days was exceeded and no declaration was made as to Cesars
disability, was this extended to 240 days because Cesar required further medical
treatment?
5. Was the 240 days exceeded and still no final decision was reached as to Cesars
disability? If so, Cesar is deemed entitled to permanent total disability benefits.
6.
If the companys physician and Cesars physician cannot agree, was a third
physician designated to determine the nature and extent of the disability. The
third physicians finding under the law is final and conclusive.
137
7. In the matter of the complaint of illegal dismissal: There is none because Cesar
disembarked on finished contract.
8. Seafarers are contractual employees, for a fixed term, governed by the contract
they sign; an exception to Article 80 of the Labor Code. Hence, the complaint for
illegal dismissal will not prosper.
5.
5.2
5.7 Persons criminally liable for the above offenses: [R.A. 10022, Sec.4]
perfected at the moment (1) the parties come to agree upon its terms;
and (2) concur in the essential elements thereof: (a) consent of the
contracting parties, (b) object certain which is the subject matter of the
contract, and (c) cause of the obligation. The object of the contract was
the rendition of service by respondent on board the vessel for which
service he would be paid the salary agreed upon.
Hence, in this case, the employment contract was perfected on
January 15, 2000 when it was signed by the parties, respondent and
petitioners, who entered into the contract in behalf of their principal,
Ranger Marine S.A., thereby signifying their consent to the terms and
conditions of employment embodied in the contract, and the contract
was approved by the POEA on January 17, 2000.
However, the employment contract did not commence, since
petitioners did not allow respondent to leave on January 17, 2000 to
embark the vessel M/V AUK in Germany on the ground that he was not
yet declared fit to work on the day of departure, although his Medical
Certificate dated January 17, 2000 proved that respondent was fit to
work. Note that petitioners failed to prove with substantial evidence
140
that they had a valid ground to prevent respondent from leaving on the
scheduled date of his deployment. While the POEA Standard Contract
must be recognized and respected, neither the manning agent nor the
employer can simply prevent a seafarer from being deployed without a
valid reason.
Court awarded moral damages in the amount of P30,000.00, plus exemplary
damages and attys fees, as petitioners act was tainted with bad
faith,[26]considering that respondents Medical Certificate stated that he was fit
to work on the day of his scheduled departure, yet he was not allowed to
leave allegedly for medical reasons.
Teekay Shipping vs. Concha, , GR 185463, 22 Feb 2012 -PRESCRIPTIVE PERIOD FOR TERMINATION CASES.
FOUR YEAR
141
TO RECAPITULATE:
a. If a complaint is brought before the DOLE to give effect to the labor standards provisions
of the Labor Code or other labor legislation, and there is a finding by the DOLE that
there is an existing employer-employee relationship, the DOLE exercises jurisdiction to
the exclusion of the NLRC.
b. If the DOLE finds that there is no employer-employee relationship, the jurisdiction is
properly with the NLRC.
c. If a complaint is filed with the DOLE, and it is accompanied by a claim for reinstatement,
the jurisdiction is properly with the Labor Arbiter, under Art. 217(3) of the Labor Code,
which provides that the Labor Arbiter has original and exclusive jurisdiction over those
cases involving wages, rates of pay, hours of work, and other terms and conditions of
employment, if accompanied by a claim for reinstatement.
d. If a complaint is filed with the NLRC, and there is still an existing employer-employee
relationship, the jurisdiction is properly with the DOLE. The findings of the DOLE,
however, may still be questioned through a petition for certiorari under Rule 65 of the
Rules of Court.
CASES:
3.1 Appeal; posting of Appeal Bond; Governments exemption from the same.
Banahaw Broadcasting Corporation vs. Cayetano Pacana III, et al, G.R. No.
171673, May 30, 2011. -- Respondents are supervisory and rank and file employees of
the DXWG-Iligan City radio station which is owned by petitioner Banahaw Broadcasting
Corporation (BBC). Respondents filed a complaint for illegal dismissal, unfair labor
142
The following can sign the verification and certification against forum
shopping without need of a board resolution: (1) the Chairperson of
the Board of Directors, (2) the President of a corporation, (3) the
General Manager or Acting General Manager, (4) Personnel Officer,
and (5) an Employment Specialist in a labor case.
While the above cases do not provide a complete listing of authorized signatories,
the determination of the sufficiency of the authority was done on a case to case
basis. In the foregoing cases the authority of said corporate representatives to sign
the verification or certificate is justified in their being in a position to verify the
truthfulness and correctness of the allegations in the petition. However, the better
procedure is still to append a board resolution to the complaint or petition to
obviate questions regarding the authority of the signatory of the verification and
certification.
3.3 Mediation. Insular Hotel Employees Union-NFL vs. Waterfront Insular Hotel
Davao, G.R. No. 174040-41, September 22, 2010. -- Procedurally, the first step to
submit a case for mediation is to file a notice of preventive mediation with the NCMB. It
is only after this step that a submission agreement may be entered into by the
parties. Section 3, Rule IV of the NCMB Manual of Procedure provides who may file a
notice of preventive mediationonly a certified or duly recognized bargaining agent.
143
Cullo admitted that the case was filed not by the Union but by individual members
thereof. Clearly, the NCMB had no jurisdiction to entertain the notice filed before it.
3.4 Employee money claim; prescription. Philippine Long Distance Telephone
Company (PLDT) vs. Roberto R. Pingol, G.R. No. 182622, September 8, 2010. -- The
Labor Code provides that money claims arising from employer-employee relations shall
be filed within 3 years from the time the cause of action accrues; otherwise they shall be
barred
4. RESIGNATIONS vs. TERMINATION vs STRAINED RELATIONS vs RETIREMENT
In this case, employer was able to prove all of the above. The consideration is not grossly
inadequate vis--vis what they should receive in full. The difference in the anounts
144
expected from those that were received may be considered as a fair and reasonable bargain
on the part of the both parties.
6. Eastern Mediterranean Maritime Ltd., et al. vs. Estanislao Surio, et al. G.R. No. 154213,
August 23, 2012. NLRCs Jurisdiction, Probationary Employees, Security of Tenure
Issue: WHETHER OR NOT THE NLRC HAS JURISDICTION TO REVIEW ON APPEAL
CASES DECIDED BY THE POEA ON MATTERS PERTAINING TO DISCIPLINARY
ACTIONS AGAINST PRIVATE RESPONDENTS.
Answer: NLRC HAS NO JURISDICTION. Petitioners adamant insistence that the NLRC
should have appellate authority over the POEAs decision in the disciplinary action because
their complaint against respondents was filed in 1993 was unwarranted. Although Republic
Act No. 8042, through its Section 10, transferred the original and exclusive jurisdiction to
hear and decide money claims involving overseas Filipino workers from the POEA to the
Labor Arbiters, the law did not remove from the POEA the original and exclusive
jurisdiction to hear and decide all disciplinary action cases and other special cases
administrative in character involving such workers. It is clear to us, therefore, that the
NLRC had no appellate jurisdiction to review the decision of the POEA in disciplinary cases
involving overseas contract workers.The obvious intent of Republic Act No. 8042 was to
have the POEA focus its efforts in resolving all administrative matters affecting overseas
workers.
Section 28. Jurisdiction of the POEA. The POEA shall exercise
original and exclusive jurisdiction to hear and decide:
(a) all cases, which are administrative in character, involving or
arising out of violations or rules and regulations relating to licensing and
registration of recruitment and employment agencies or entities; and
(b) disciplinary action cases and other special cases, which are
administrative in character, involving employers, principals,
contracting partners and Filipino migrant workers.
7. Manuel D. Yngson, Jr., (in his capacity as the Liquidator of ARCAM & Co., Inc.) vs.
Philippine National Bank. G.R. No. 171132, August 15, 2012. Lien on unpaid wages;
As to petitioner's argument on the right of first preference as regards unpaid wages, the
Court has elucidated in the case of Development Bank of the Philippines v. NLRC that a
distinction should be made between a preference of credit and a lien. A preference applies
only to claims which do not attach to specific properties. A lien creates a charge on a
particular property.
The right of first preference as regards unpaid wages recognized by Article 110 of the
Labor Code, does not constitute a lien on the property of the insolvent debtor in favor
of workers. It is but a preference of credit in their favor, a preference in application. It
is a method adopted to determine and specify the order in which credits should be paid in
the final distribution of the proceeds of the insolvent's assets. It is a right to a first preference
in the discharge of the funds of the judgment debtor. Consequently, the right of first
preference for unpaid wages may not be invoked in this case to nullify the foreclosure sales
conducted pursuant to PNB 's right as a secured creditor to enforce its lien on specific
properties of its debtor, ARCAM.
8. Piercing corporate veil; Liability of corporate officers; Moral and exemplary damages;
Park Hotel, et al. vs. Manolo Soriano, et al. G.R. No. 171118. September 10, 2012.
To disregard the separate juridical personality of a corporation, the wrongdoing must be
established clearly and convincingly. It cannot be presumed.
145
In the case at bar, respondents utterly failed to prove by competent evidence that Park Hotel
was a mere instrumentality, agency, conduit or adjunct of Burgos, or that its separate
corporate veil had been used to cover any fraud or illegality committed by Burgos against
the respondents. Accordingly, Park Hotel and Burgos cannot be considered as one and the
same entity, and Park Hotel cannot be held solidary liable with Burgos.
Nonetheless, although the corporate veil between Park Hotel and Burgos cannot be pierced,
it does not necessarily mean that Percy and Harbutt are exempt from liability towards
respondents. Verily, a corporation, being a juridical entity, may act only through its
directors, officers and employees. Obligations incurred by them, while acting as
corporate agents, are not their personal liability but the direct accountability of the
corporation they represent.
However, corporate officers may be deemed solidarily liable with the corporation for
the termination of employees if they acted with malice or bad faith. In the present case,
the lower tribunals unanimously found that Percy and Harbutt, in their capacity as corporate
officers of Burgos, acted maliciously in terminating the services of respondents without any
valid ground and in order to suppress their right to self-organization.
9. DEATH BENEFITS: Crew and Ship Management International Inc. and Salena, Inc. Vs.
Jina T. Soria - G.R. No. 175491. December 10, 2012
Seaman injured at sea, re: burned leg on hot engine. Was repatriated to Philippines but
failed to comply with medical check-up within three days from repatriation. Seaman died
after a month of pneumonia. Claim for compensability: Cause of death was burn injury
which led to tetanus and triggering pneumonia.
Issue: Is the death compensable?
Answer: No. The rule is that, in labor cases, substantial evidence or such relevant
evidence as a reasonable mind might accept as sufficient to support a conclusion is
required. The oft-repeated rule is that whoever claims entitlement to the benefits provided by
law should establish his or her right thereto by substantial evidence. Substantial evidence is
more than a mere scintilla. Any decision based on unsubstantiated allegations cannot stand
as it will offend due process.
In arguing for the compensability of Zosimo's death, respondent claims that the burn injury
suffered by him on board M.V. Apollo brought about the tetanus infection which eventually
led to pneumonia causing his death. The Court, however, finds difficulty in accepting this.
10. IMPORTANT PERALTA CASE: MAY THE ISSUE OF ABSENCE OF EMPLOYEREMPLOYEE RELATIONSHIP BE RAISED FOR THE FIRST TIME ON APPEAL?
ANSWER: NO. The alleged absence of employer-employee relationship cannot be
raised for the first time on appeal. In its Position Paper, petitioner highlighted
respondents complicity and involvement in the alleged fake condemnation of
damaged cigarettes as found by the DFPDC. This, according to petitioner, was a
just cause for terminating an employee.
With the pleadings submitted by petitioner, together with the corresponding
pleadings filed by respondent, the LA and the NLRC declared the dismissal of
respondent illegal. These decisions were premised on the finding that there was an
employer-employee relationship. Nowhere in said pleadings did petitioner deny
the existence of said relationship. Rather, the line of its defense impliedly
admitted said relationship. The issue of illegal dismissal would have been
irrelevant had there been no employer-employee relationship in the first
place.
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In this case, petitioner insisted that respondent was dismissed from employment
for cause and after the observance of the proper procedure for termination.
Consequently, petitioner cannot now deny that respondent is its employee. While
indeed, jurisdiction cannot be conferred by acts or omission of the parties,
petitioners belated denial that it is the employer of respondent is obviously an
afterthought, a devise to defeat the law and evade its obligations.
2013 BAR PROBLEM ON REMEDIES; NLRC JURISDICTION:
Cris filed a complaint for illegal dismissal against Baker Company. The Labor Arbiter
dismissed the complaint but awarded Cris financial assistance. Only the company
appealed from the Labor Arbiter's ruling. It confined its appeal solely to the question of
whether financial assistance could be awarded. The NLRC, instead of ruling solely on the
appealed issue, fully reversed the Labor Arbiter's decision; it found Baker Company
liable for illegal dismissal and ordered the payment of separation pay and full
backwages.
Through a petition for certiorari under Rule 65 of the Rules of Court, Baker Company
challenged the validity of the NLRC ruling. It argued that the NLRC acted with grave
abuse of discretion when it ruled on the illegal dismissal issue, when the only issue
brought on appeal was the legal propriety of the financial assistance award.
Cris countered that under Article 218(c) of the Labor Code, the NLRC has the authority to
"correct, amend, or waive any error, defect or irregularity whether in substance or in
form" in the exercise of its appellate jurisdiction.
QUESTION: Decide the case. (8%)
ANSWER: Review powers of NLRC in perfected appeals is limited only to those issues raised
on appeal. Hence, it is grave abuse of discretion for the NLRC to resolve issues not raised on
appeal. (United Placement International vs. NLRC, 221 SCRA 445 [1993].)
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