Labor Relations Reviewer

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(1)LABOR LAW REVIEWER. Labor Relations S A I N T LO U I S UN I V E R S I T Y. College of Law. March 2009 EDITION.

(2) SAINT LOUIS UNIVERSITY College of Law. BAR OPERATIONS COMMITTEE (Team 2009) KRIS DYAN CAYABYAB Overall Chair ARIZ CAWILAN Vice Chair Section Chiefs RYAN SOLANO Civil Law Section MAAN BAGUIOEN Commercial Law Section BRENSON SIADTO Labor Law Section NORWAYNE SALMAN Taxation Law Section. MYKEEDOX Criminal Law Section LOUIE SAJONIA Ethics Section JED ALLAN BEJAR Political Law Section BRENNER BENGWAYAN Remedial Law Section. Adviser ATTY. HILARIO JUSTINO F. MORALES Head, Political Law Department College of Law, Saint Louis University. LABOR LAW SECTION Team 2009. Team 2008. BRENSON SIADTO. Section Chief. RACHELLE ANN LAZAGA. ANNA MARI ABARCAR. Vice Chief. ORLANDO TENORIO. Members LORNA FERNANDEZ. ANNA MARI ABARCAR. JOVILYN HIMOLDANG. JOAN ACHAZO. SENCIA PANTALEON CYNTHIA PUNGAYAN AMBROSIO GANDEZA ORLANDO TENORIO. G. HAZEL BUNESS CANALE FLORIMAE DANGLI YAMINE LEE TADEO CLIMARK DASAYON AMBROSIO GANDEZA. Editorial Consultant & Adviser ATTY. LEILANEE Q. DASIG – QUANGUEY Professor College of Law, Saint Louis University Public Attorney Public Attorneys’ Office, City of Baguio. W LABOR LAW REVIEWER Labor Relations Copyright © 2009 Bar Operations Committee College of Law Saint Louis University 2600 Baguio City ALL RIGHTS R ESERVED No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, except as may be expressly permitted by the Intellectual Property Code or in writing by the publisher. Requests for permission should be addressed in writing to: Bar Operations Committee, College of Law, Saint Louis University, Upper Gen. Luna Rd., 2600 Baguio City..

(3) Labor Relations. Labor law reviewer _________________________________. 1. __________________________________. Labor Relations. 1. to promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes; 2. to promote free trade unionism as and instrument of for the enhancement of democracy and the promotion of social justice and development; 3. to foster the free and voluntary organization of a strong and united labor movement; 4. to promote the enlightenment of workers concerning their rights and obligations as union members and employees; 5. to provide an adequate administrative machinery for the expeditious settlement of labor and industrial dispute; 6. to ensure a stable but dynamic and just industrial peace; 7. to ensure the participation of workers in decision and policy-making process affecting their rights, duties and welfare;. DEFINITIONS WHO ARE EMPLOYEES? The term EMPLOYEES shall include: 1. Any employee and shall not be limited to the employee of any particular employer; 2. Any individual: Ø whose work had ceased as a consequence of or in connection with any current labor dispute; and Ø who had not obtained any substantially equivalent and regular employment. WHO ARE EMPLOYERS? EMPLOYERS are defined as, any person who employs the services of another, and one for whom the employees work and who pays their wages and salaries. They may also be any person directly or indirectly acting in the interest of an employer (SEE D. O. No. 40-03).. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. ARTICLE 211 DECLARATION OF POLICY.

(4) Labor Relations. Labor law reviewer _________________________________. 2. __________________________________. I JURISDICTION AND PROCEDURE IN LABOR DISPUTES. LABOR DISPUTE Any matter or controversy concerning the terms and conditions of employment or the association or representation of person in negotiating, fixing, maintaining, changing and arranging the terms and conditions of employment, regardless or whether the disputants stand in proximate relation of employer and employee.. Nature: Dispute arises from employer-employee relationship, although disputants need not be proximately “employee” or “employer” of the other. Subject Matter (Dispute Concerns) • •. Terms or conditions of employment; or Association or representation of persons in negotiating, fixing, maintaining, or changing terms or conditions of employment.. KINDS OF LABOR DISPUTES Labor Standards Disputes • • •. Compensation Benefits Working conditions. Labor Relations Disputes • • • • • •. Organizational Right Dispute/ULP Representation Disputes Bargaining Disputes Contract Administration or Personnel Policy Disputes Employment Tenure Disputes Inter-Union or Intra-Union Disputes. REMEDIES IN LABOR DISPUTES • • • • • • •. • • • • • • • •. Grievance Procedure Conciliation Mediation Enforcement or Compliance Order Certification of Bargaining Representatives Arbitration (Voluntary/Compulsory) Assumption of Jurisdiction. Certification to NLRC Injunction Judicial Action Appeal Judicial Review Compromise Agreement Collective Bargaining Strike or Lockout. ;. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. •.

(5) Labor law reviewer _________________________________. Labor Relations. 3. __________________________________. II NATIONAL LABOR RELATIONS COMMISSION CREATION AND COMPOSITION. COMPOSITION. §. EIGHT members shall be chosen only from among the nominees of the workers and employers organization respectively.. §. The CHAIRMAN and SEVEN REMAINING MEMBERS shall come from the public sector with the latter to be chosen preferably among the incumbent labor arbiters.. (SEE R.A. 9347; June 24, 2006). QUALIFICATIONS •. Chairman and other Commissioners 1. shall be members of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at least 15 years; 3. with at least 5 years experience or exposure in the field of labor management relations; 4. shall be preferably residents of the region where they shall hold office;. •. Labor Arbiters 1. must be members of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at least ten (10) years; 3. with at least five (5) years of experience or exposure in the field of labor management relations;. APPOINTMENT The CHAIRMAN, DIVISION PRESIDING COMMISSIONERS, and other COMMISSIONERS are appointed by the President. L ABOR ARBITERS are appointed by the President upon recommendation of the Commission en banc.. TERM OF OFFICE The MEMBERS OF THE COMMISSION and the L ABOR ARBITERS shall hold office during good behavior until they reach the age of sixty-five (65) years unless sooner removed for cause provided by law or become incapacitated to discharge the duties of their functions.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. THE COMMISSION is composed of a Chairman and twenty-three (23) members..

(6) Labor law reviewer _________________________________. Labor Relations. 4. __________________________________. JURISDICTION OF LABOR ARBITERS • • •. • • •. Unfair labor practices cases / gross violation of CBA. Termination disputes. Money claims (arising from ER-EE relationship) regardless of amount, when accompanied with a claim for reinstatement exceeds P5, 000.00, whether or not accompanied with a claim for reinstatement. Exception: SSS / ECC / Medicare claims. Claims for damages arising from employer-employee relations. Strikes and lockouts. Any or all of the above cases can, by agreement of the parties, be presented to and decided with finality by voluntary arbitration of a panel of voluntary arbitrators.. • • • •. Money claims (arising from ER-EE relationship) or by virtue of any law or contract, involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages. Wage distortion disputes in unorganized establishments. Enforcement of compromise agreements when there is non-compliance by any of the parties. Other cases as may be provided by law.. The original and exclusive jurisdiction of labor arbiters under ARTICLE 217 (c) for money claims is limited only to those arising from statutes or contracts other than a CBA. The labor arbiter has no jurisdiction over intra-corporate disputes. ARTICLE 263 (g) empowers DOLE Secretary or the President of the Republic to assume jurisdiction or refer the case to the NLRC if the labor dispute or impending strike or lockout involves an industry indispensable to national interest.. III JURISDICTION OF THE NATIONAL LABOR RELATIONS COMMISSION. ORIGINAL JURISDICTION • • •. Cases certified to it for COMPULSORY ARBITRATION by the President or Sec. of Labor and Employment pursuant to Arts. 263 and 264 of the LC; Cases on INJUNCTION pursuant to Arts. 218 and 264 of the LC; and CONTEMPT cases pursuant to Art.218 of the LC.. APPELLATE JURISDICTION •. Cases decided by the regional offices of the DOLE in the exercise of its adjudicatory function pursuant to Art. 129 of the LC; and. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. Additional Cases:.

(7) Labor law reviewer _________________________________ •. Labor Relations. 5. __________________________________. Cases decided by the LAs pursuant to Art. 217(b) of the LC and see 10 of RA 8042 (overseas contract workers).. POWERS OF THE NLRC •. Rule-making Power It has the power to promulgate rules and regulations governing: F The hearing and disposition of cases before it and its regional branches; F The hearing and disposition of cases pertaining to its internal functions; F Those as may be necessary to carry out the purposes of the Code.. •. Power to Issue Compulsory Processes F Administer oaths; F Summon parties; and. •. Power to Investigate and Hear Disputes within its Jurisdiction F Conduct investigation for the determination of a question, matter or controversy within its jurisdiction; and F Proceed to hear and determine the disputes in the manner laid down under paragraph (c) of Article 218. F Conduct ocular inspection (Article 219).. •. Contempt Power F Hold any person in contempt directly or indirectly; and. ISSUANCE OF INJUNCTION OR TEMPORARY RESTRAINING ORDER (TRO) This power is reserved specifically to the NLRC however, the [1990] Rules of Procedure of the NLRC, provides that ancillary power of issuing preliminary injunction or TRO may be exercised by the Labor Arbiters only as an incident to the cases pending before them in order to protect the rights of the parties during the pendency of the cases by excluding labor disputes involving strikes or lockout. Section 5 Rule XVI, Book V of the Implementing Rules of the Code, also allows MedArbiters to do the same. The power of the NLRC to enjoin or restrain the commission of any or all prohibited or unlawful acts as provided in Article 218 of the Labor Code, can only be exercised in a labor dispute. REQUISITES: 1. The complainant must allege that a substantial and irreparable injury to his or her property is inevitable, unless a TRO is issued without notice; 2. An Affidavit of Merit or a testimony under oath is filed; and 3. An Undertaking with Adequate Security or Bond is first filed, the amount of which to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense, or damage, and to include all other reasonable costs, caused by the improvident or erroneous issuance of such order or injunction.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. F Issue subpoenas ad testificadum and duces tecum..

(8) Labor law reviewer _________________________________. Labor Relations. 6. __________________________________. IV JURISDICTION OF THE BUREAU OF LABOR RELATIONS. • • •. All inter-union conflicts; All intra-union conflicts; and All other related labor relations disputes NOTE: The Bureau of Labor Relations no longer handles all labor management disputes.. Inter-union dispute: any conflict between and among legitimate labor unions involving representation questions for purposes of collective bargaining or to any other conflict or dispute between legitimate labor unions. Intra-union dispute: any conflict between and among union members, including grievances arising from any violation of the rights and condition of membership, violation or disagreement over any provision of the union’s constitution and by-laws, or dispute arising from chartering or affiliation of union.. ADMINISTRATIVE FUNCTIONS OF BLR / LR DIVISION • • •. Regulation of registration of Labor Unions; Keeping of registry of labor unions; and Maintenance of a file of CBAs.. Notes: • • • • •. Concurrent jurisdiction of BLR and Labor Relations Division in each Regional office of DOLE. Denial of application for registration in the regional office is appealable within 10 days to the BLR. Execution of the order of the Regional director shall be stayed pending appeal (IR: Book 5, Rule XIV; Sec 8), in the exercise of its appellate jurisdiction. The decision of the Bureau shall be final and no longer subject of appeal (Sec. 7, Ibid). The decision of the Bureau in its exercise of its original jurisdiction is appealable to the Secretary of Labor and Employment (SOLE).. DEPARTMENT ORDER NO . 9 (Decisions on Intra Union Disputes), provides that the appeal from the regional level must be made to the BLR Bureau Director, which shall have the power to require the appearance of any person or the production of any paper, document or matter relevant to a labor dispute under its jurisdiction (SEE ALSO Art. 229).. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. The BUREAU OF L ABOR RELATIONS (BLR) and the L ABOR RELATIONS D IVISION in the regional offices of the DOLE shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on the following:.

(9) Labor law reviewer _________________________________. Labor Relations. 7. __________________________________. V JURISDICTION OF VOLUNTARY ARBITRATORS. ORIGINAL AND EXCLUSIVE JURISDICTION. •. Disputes arising from interpretation or enforcement of company personnel policies;. •. Unresolved grievance arising from interpretation or implementation of a collective bargaining agreement and those arising from the interpretation or enforcement of company or personnel policies.. •. Upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.. VI JURISDICTION OF VOLUNTARY ARBITRATORS. APPEAL Period to File an Appeal Decision or orders of the L ABOR ARBITER may be appealed to the NLRC by any or both parties within 10 calendar days from receipt of such decisions or orders. If the decision, resolution, or orders are made by the REGIONAL DIRECTOR of the Department of Labor, appeal may be filed within five (5) calendar days from receipt thereof. The 10 or the five (5) day period should be counted not from the date of receipt of the decision/order by a party but from the date of receipt by his lawyer. This is mandatory but allows some exceptions. Grounds for Appeal • •. Prima facie evidence of abuse of discretion; Fraud or coercion including graft and corruption in securing the decision;. •. Pure questions of law; and. •. Serious errors in findings of facts causing grave or irreparable damage or injury.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. To hear and decide the following:.

(10) Labor law reviewer _________________________________. Labor Relations. 8. __________________________________. Requirements for Appeal to the NLRC. • • •. Appeal shall be filed within the reglementary period; It must be in the form of memorandum of appeal which shall state the following: § Grounds relied upon and arguments in support thereof; § Relief prayed for; and § Statement of the receipt of the appealed decision, resolution or order. It must be verified by the appellant himself; It must be in three (3) legibly typewritten or printed copies; It must be accompanied by the following: § Proof of payment of the required appeal fee; § Posting of cash or surety bond; § Certificate of non-forum shopping; § Proof of service to the adverse party.. The requirement of posting of bond, although jurisdictional, was given liberal interpretation. The posting of real property bond was allowed as it sufficiently protects the interests of the other party should the latter prevail. Its RATIONALE is that the importance of deciding cases is based on substantive merit and not on strict compliance of technical rules. In cases of perfected appeals, the NLRC limits itself to reviewing issues which were raised on appeal; the rest shall be final and executory.. VII MOTION FOR RECONSIDERATION. A party is allowed to file a MOTION FOR RECONSIDERATION of any order, resolution or decision of the NLRC based on palpable or patent errors, provided that the motion is under oath and filed within 10 calendar days from receipt of the order, resolution or decision. It is a pre-condition for pursuing any further or subsequent remedy; otherwise, the said order, resolution or decision shall become final and executory after 10 calendar days from receipt thereof. The Requirement of a Motion for Reconsideration may be dispensed with, in the following instances: • • • • • •. When the issue raised is one or purely of law; Where public interest is involved; In cases of urgency; and Where special circumstances warrant immediate or more direct action. Where the assailed decision was rendered without jurisdiction or in excess of jurisdiction; Where, under the circumstances, filing a Motion for Reconsideration would be useless.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. • •.

(11) Labor law reviewer _________________________________. Labor Relations. 9. __________________________________. VIII PETITION FOR CERTIORARI (Under Rule 65, Rules of Court). • •. ACTION FOR CERTIORARI,. where the tribunal, board, or. Has acted without or in excess of jurisdiction; and, or With grave abuse of discretion and praying that judgments be rendered annulling or modifying the proceedings, as the law requires, of such tribunal, board or officer.. It may be filed not later than 60 days from notice of the judgment, order, or resolution. Both SC and CA have jurisdiction over the action; however, in line with the doctrine of minatory of warts, the petition should initially be presented to the lower of the two courts, that is, the CA.. IX EXECUTION OF JUDGMENTS. A WRIT OF EXECUTION may be issued by the following officials for the final decisions, orders or awards promulgated by them: • • • • • • •. Secretary of DOLE; NLRC; Any regional director; Any labor arbiter; Any med-arbiter; The voluntary arbitrator; or The panel of arbitrators.. It may be issued motu proprio or on motion of any interested party within five (5) years from the date, it becomes final and executory.. REINSTATEMENT •. The decision of the LA reinstating a dismissed OR separated employee shall be executory, even pending appeal.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. A party may avail of the CIVIL office exercising juridical functions:.

(12) Labor law reviewer _________________________________. Labor Relations. 10. __________________________________. The employee shall either be: §. Admitted back to work under the same terms and conditions prevailing prior to the dismissal or separation; or. §. At the option of the employer, to be merely reinstated into payroll.. The posting of a bond by the employer shall not stay the execution of reinstatement. •. The decision of the NLRC reinstating a dismissed employee is not self-executory. Where no writ of execution was issued, the employee would not be entitled to wages during the pendency of the case for review before the appellate courts.. For purpose of venue, workplace shall be understood as the place or locality where the employee is regularly assigned when the cause of action arose. Work place shall include the place where the employee is supposed to report back after a temporary detail, assignment or travel. In the case of field employees, as well as ambulant or itinerant workers, their workplace is where they are regularly assigned or where they are supposed to regularly receive their salaries/wages or work instructions from and report the results of their assignment to their employers. Where two (2) or more regional arbitration branches have jurisdiction over the workplace, the branch that shall first acquire jurisdiction over the case shall exclude the others. When improper venue is not objected before or at the time of filing of position papers, such question shall be deemed waived. The venue of an action may be changed or transferred by written agreement of the parties, or when the NLRC or LA before whom the case is pending so orders upon motion by the proper party in meritorious cases.. X COMPROMISE AGREEMENTS (Article 227, Labor Code). F UNDAMENTAL POLICY OF P HILIPPINE L ABOR L AWS: preferential use of voluntary modes of settling disputes since the maintenance of industrial peace is a joint responsibility of the worker and the employer. •. •. Under Art. 227, any compromise settlement voluntarily entered into by the parties with the assistance of the Bureau or the Regional Office of the DOLE shall be FINAL and BINDING upon the parties. The NLRC or any courts shall not assume jurisdiction over issues involved in the compromise agreements EXCEPT:. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. VENUE.

(13) Labor law reviewer _________________________________. Labor Relations. 11. __________________________________. §. In non-compliance; or. §. If there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion.. FORMAL REQUIREMENTS 1. The compromise agreement must be reduced to writing; and 2. Signed in the presence of the Regional Director or his duly authorized representative. VALIDITY OF COMPROMISE AGREEMENTS AND QUITCLAIMS. EXTENSION: Not all waivers and quitclaims are invalid as against public policy. If the agreement was: (1) Voluntarily entered into, and (2) Represents a reasonable settlement, it is binding on the parties. •. It must be duly authorized, as required by law. Attorneys and other representatives of the parties shall have authority to bind their clients in all matters of procedure but they cannot without SPA express consent or enter into a compromise agreement with the opposing party.. WHEN TO EFFECT COMPROMISE: it may be effected at any stage of the proceedings and even when there is already a final executory judgment. REMEDIES FOR NON-COMPLIANCE: 1. Conference the compromise by a writ of execution; and 2. Regard it as rescinded and so insist upon the original demand.. XI TERMINATION DISPUTES. ART. 279: SECURITY OF TENURE §. It is the Constitutional right granted to the employee to be secured, or to continue in employment until the same is terminated by virtue of a just cause or on grounds authorized by law.. §. Security of tenure applies not only to actual dismissals but also applies if there is constructive dismissal.. Coverage: extends to all types of employees. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. GENERAL RULE: The law looks with disfavor upon quitclaims end releases by EE’s who are pressured into signing them by unscrupulous employers..

(14) Labor law reviewer _________________________________. 12. Labor Relations __________________________________. CLASSIFICATION OF EMPLOYEES • • • • • •. Regular Project Seasonal Casual Fixed-period or Contractual Probationary. Regular Employees An employee is deemed REGULAR where the employee: §. Has been engaged to perform activities which are usually necessary or desirable in the usual trade or business of the employer; or. §. Has rendered at least one year of service, whether continuous or broken, with respect to the activity in which he is employed.. §. Even handicapped persons, employed for humanitarian reasons, may become regular employees if they are doing necessary or desirable jobs and their employment has exceeded six months through renewal of their initial appointments (Bernardo Ruling).. §. Has been continuously employed beyond the probationary, contractual, or project employment.. period. of. Project Employees •. •. A PROJECT EMPLOYEE is one whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee. §. Must be in good faith.. §. Service is coterminous with the project or phase of the project; and. §. Employer has no obligation to give him separation pay.. §. Termination of the project employment must be duly reported to the nearest DOLE office.. A PROJECT EMPLOYEE may acquire the status of a regular employee when the following concur: §. There is a continuous rehiring of project employees even after cessation of a project; and. §. The task performed by the alleged project employee is vital, necessary, and indispensable to the usual business or trade of the employer.. Seasonal Employees •. A SEASONAL EMPLOYEE is one who is engaged to work during a particular season in an activity that is usually necessary or desirable in the usual business or trade of the employer.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. •.

(15) Labor law reviewer _________________________________ •. Labor Relations. 13. __________________________________. But, during off-season, the employer-employee relationship is not severed. The seasonal employee is merely considered on a leave of absence without pay.. Casual Employees •. CASUAL EMPLOYEES are those employees engaged to work on an activity that is not usually necessary or desirable in the usual business or trade of the employer.. •. If the casual employee has worked for at least one year – whether continuously or broken – he becomes a regular employee.. •. Employee whose employment will last only for a definite period as agreed by the parties.. •. REQUISITES:. •. •. The fixed period was knowingly and voluntarily agreed upon by the parties.. •. The employer and the employee dealt with each other on more or less equal terms with no moral dominance being exercised by the employee (Brent School Ruling).. It is not valid if it is apparent that periods have been imposed to preclude acquisition of tenurial security by the employee.. Probationary Employees •. One who is on trial by an employer during which the employer determines whether or not he is qualified for permanent employment. Period: limited to six (6) months Exceptions: § § §. When the parties to an employment contract agree otherwise. When the same is established by company policy. When the same is required by the nature of work performed by the employee.. Extensions Extension should be done before the lapse of the six (6)-month period. It may be terminated: § § •. For a just and authorized cause; When he fails to qualify as regular employee.. Standards of employer should be made known to the person on trial at the time of his engagement. Otherwise, he is deemed regular.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. Fixed-Period Employees.

(16) Labor Relations. Labor law reviewer _________________________________ •. 14. __________________________________. The employee who is allowed to work after a probationary period shall be considered a regular employee by operation of law.. PRIVATE SCHOOL TEACHERS REQUISITES for acquisition of permanent employment: • • •. Teacher is a full – time teacher; Must have rendered three consecutive years of service; Service must have been satisfactory.. DUE PROCESS. • • • •. Written notice together with grounds or offenses charged. Opportunity to be heard by means of a formal investigation. Subsequent formal and written notice of termination. Plus other requisites as may be provided by company handbooks in addition to the first three.. Article 277 applies only to termination and not to disciplinary actions unless provided by the company.. VALIDITY OF DISMISSAL. General Postulates of Validity TERMINATION VALIDITY. =. Substantial Validity. SUBSTANTIAL VALIDITY. =. Just or Authorized Cause. PROCEDURAL VALIDITY. =. Notice and Hearing. +. Procedural Validity. PROCEDURAL VALIDITY. •. NOTICE REQUIREMENT The mere posting of notice on employee’s bulletin board is not sufficient. Payment of one (1) month salary in lieu of notice is not valid. If based on JUST CAUSES: F The first notice must apprise the employee of the particular acts or omissions for which his dismissal is sought; and F The second notice, which informs the employee of the employer’s decision to dismiss him, is served to the employee.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. REQUISITES for due process under Article 277:.

(17) Labor Relations. Labor law reviewer _________________________________. 15. __________________________________. If based on AUTHORIZED CAUSE: F The employer should give both the worker and the DOLE written notices 30 days prior to termination.. •. HEARING F A worker may answer allegations within a reasonable period from receipt of the notice of dismissal. F The employer shall afford the worker ample opportunity to be heard and to defend himself with his representatives.. PREVENTIVE SUSPENSION It is imposed during the pendency of the investigation, if the worker’s continued employment poses a serious and imminent threat to life and property of employer, or of his co-employees.. Maximum Period: 30 Days NOTE: After the 30-day period, the employer may extend preventive suspension if he pays the wages and other benefits due to the suspended worker.. Rule Pending Investigation: PREVENTIVE S USPENSION is not punitive for the first 30 days, because it is intended only for affording the management’s unhampered opportunity to investigate; hence, the period of suspension is NOT COMPENSABLE.. Rule Pending Appeal: PREVENTIVE S USPENSION is punitive already; hence, if exonerated, the employee must be reinstated and COMPENSATED for the period of his suspension. Suspension beyond 30 days DOES NOT necessarily ripen to dismissal.. DOCTRINES ON DISMISSAL FOR CAUSE WITHOUT PROCEDURAL DUE PROCESS (PDP). 1. PRE-WENPHIL DOCTRINE. J/A CAUSE. +. (-PDP). =. ILLEGAL DISMISSAL. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. F Second notice informing the employee of his dismissal must be given after due hearing..

(18) Labor Relations. Labor law reviewer _________________________________. 16. __________________________________. 2. WENPHIL DOCTRINE (FEB 8, 1989). J/A CAUSE. +. (-PDP). =. VALID DISMISSAL + INDEMNITY. 3. SERRANO DOCTRINE (JAN 27, 2000). +. (-PDP). =. DISMISSAL, i. e., INEFFECTUAL + FULL BACK WAGES FROM THE TIME OF DISMISSAL TO FINALITY OF COURT’S DECISION. 4. AGABON DOCTRINE ( NOV 17, 2004). J/A CAUSE. +. (-PDP). =. VALID DISMISSAL + PAYMENT OF INDEMNITY (dependent upon the gravity of the disregard to due process). In the case of Serrano, the SC held that violation of the notice requirement cannot be considered as denial of due process resulting in the nullity of the employee’s dismissal for the following reasons: (1) The due process clause of the Constitution is a limitation on governmental powers and does not apply to the exercise of private power. (2) Notice and hearing are required under the Due Process Clause before the power of organized society is brought to bear upon the individual. (3) The employer cannot really be expected to be entirely an impartial judge of his own case. •. BURDEN OF PROOF EMPLOYER has the burden of proving the lawful cause.. •. DEGREE OF PROOF S UBSTANTIAL EVIDENCE is considered sufficient. This means more than a scintilla of relevant evidence; evidence which a reasonable mind might accept as adequate to support a conclusion.. CONSTRUCTIVE DISMISSAL INVOLUNTARY RESIGNATIO N resorted to when continued employment becomes impossible, unreasonable, or unlikely; when there is a DEMOTION IN RANK or a DIMINUTION IN. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. J/A CAUSE.

(19) Labor law reviewer _________________________________. Labor Relations. 17. __________________________________. PAY;. or when a CLEAR DISCRIMINATION, insensibility or disclaim by an employer becomes unbearable to an employee. An employee is deemed constructively dismissed where his status is changed from regular to casual. •. Six (6) Months Rule “Floating Status” beyond six months under Article 286 may also amount to constructive dismissal.. •. Indefinite Lay-off or Suspension. VALID DISMISSAL Art. 282: Termination by Employer (SGF-CO) 1. serious misconduct or willful disobedience to lawful orders; 2. gross and habitual neglect of duty; 3. fraud or willful breach by the employee of the trust reposed by his employer; 4. commission of a crime; and 5. other analogous causes.. MANAGEMENT RIGHTS a. Right to Manage -. Employer is free to regulate according to his own discretion and judgment, EXCEPT as limited by special laws.. -. QUALIFICATION: as long as it is exercised in good faith ü For the advancement of the employers interest not for the purpose of defeating or circumventing the rights of the employees under special laws or valid agreements. -. JOB CONTRACTING: consultation with the union is not necessary. •. Not unlimited; the prerogative is subject to well-defined legal limitations. b. Right to Discipline c. Right to Transfer Employees -. It is allowed PROVIDED: i. There is no demotion in rank; and ii. No diminution of salary, benefits, and other privileges.. -. The employees’ security of tenure dies not give him vested right over the position held.. REQUIREMENT: i. Not unreasonable or inconvenient;. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. It is the non-acceptance of a returning employee after exhausting his leave of absence..

(20) Labor law reviewer _________________________________. Labor Relations. 18. __________________________________. ii. Not prejudicial to employee; iii. No demotion in rank, diminution of salary, benefits and other privileges. d. Right to Demote -. It can be upheld so long as it is not tainted with unfair labor practice.. e. Right to Dismiss -. It is a measure of self-preservation;. -. However, it is not absolute, it is exercised only: i. on just and authorized causes; and §. -. The preservation of the life of the citizens is a basic duty of the state, more vital than the preservation of corporate profits.. For it to be valid: i. the employer must show sufficient ground for dismissal; and ii. observe procedural due process (service of notice to employee and the DOLE).. -. The expiration of tenure is not tantamount to dismissal and thus there is no entitlement to separation pay.. JUST CAUSES OF TERMINATION. 1. SERIOUS MISCONDUCT -. -. It is an improper or wrong conduct; Transgression of some established or definite rule of conduct, a forbidden act, a dereliction of duty, willful in character and implies wrongful intent and not mere error in judgment; It must be serious and in connection with the employee’s work.. *Immoral Conduct: It is a conduct, which is as willful, flagrant or shameless as to show indifference to the opinion of good and respectable members of the community that must likewise be gross.. **The factors attending the circumstance and company policies must also be considered. 2. WILLFUL DISOBEDIENCE Requisites: a) Orders, regulations, instructions of the employer must be: -. reasonable and lawful;. -. sufficiently known to employee;. -. in connection with the duties which the employee had been engaged.. b) Employee’s conduct must be willful or intentional; the willfulness being characterized by a wrongful or perverse attitude.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. ii. subject to regulation of the state by virtue of its police power..

(21) Labor Relations. Labor law reviewer _________________________________. 19. __________________________________. -. Reasonableness has reference not only to the kind and character of the directions or command but also to the manner in which they are made.. -. Disobedience must relate to substantial matters.. **Valid Transfers -. This right flows from ownership;. -. In the interest of the efficient and economic operation of its business.. -. LIMITATION: mala fides. -. Employer CANNOT exercise the right if it is tainted or vitiated by improper motive and is merely a disguised attempt to remove or punish the employee sough to be transferred.. Demotion of an employee and his transfer to another place of work because of his failure to observe proper diligence in his work, of his indolence, habitual tardiness and absences do not constitute dismissal.. **Invalid Transfers -. The right to transfer personnel must be exercised without grave abuse of discretion putting to mind the basic elements of justice and fair play.. **The transfer is INVALID if done: q q q q q q. for and illicit or underhand purpose; to defeat the rights of the employees to self organization; to penalize the employee for union activities; to remove an undesirable employee; to remove an employee, without valid reason and valid purpose; to inconvenience to the employee. § This, however, does not necessarily invalidate a transfer order BUT inconvenience caused by unreasonableness of the transfer order makes the order itself invalid and disobedience thereof is not a reason to dismiss the worker; and § Although mere inconvenience does not justify disobedience to a transfer order, the order itself becomes flawed and unenforceable it if fails the criteria of lawfulness and reasonableness. § It depends on the circumstances availing in each case.. **A transfer becomes unenforceable if coupled with or is in the nature of a promotion, where the promotion is rejected by employee. -. -. There is no law that compels an employee to accept a promotion, as promotion is in the nature of a gift or reward, which the person has the right to refuse. A person cannot be punished if he was exercising a right. TRANSFER. PROMOTION. It is a movement from one position to another of equivalent rank, level or salary without break of service.. It is an advancement from one position to another with increase of duties and responsibilities accompanied by increase in salary. Lateral movement.. Scalar ascent.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. •.

(22) Labor law reviewer _________________________________. Labor Relations. 20. __________________________________. 3. GROSS AND HABITUAL NEGLECT OF DUTIES REQUISITES: a) Neglect must be gross in character; and b) It must be habitual.. -. It is not necessary that the employer show that he has incurred actual loss, damage or prejudice because of the employee’s conduct.. -. It is sufficient that the gross and habitual neglect by the employee of his duties TENDS to prejudice the employer’s interest.. -. What is required of the employee is that of ordinary and reasonable skill, care and diligence. He cannot therefore be discharged on the ground of incompetency merely because he failed to employ the highest degree of skill and care known in the trade UNLESS he is specially contracted by reason thereof.. **Gross Negligence -. It is the want, absence of, or failure to exercise slight care or diligence or the entire absence of care.. -. It evinces thoughtless disregard of consequences without exerting effort to avoid them.. **Abandonment REQUISITES: a. failure to report for work or absence without valid or justifiable reason b. clear intention to sever the employer-employee relationship c. deliberate and unjustifiable refusal of the employee to resume his work without intention of returning. GENERAL RULE: The immediate filing of a complaint for illegal dismissal negates abandonment. EXCEPTION: If abandonment is disproved OR if there is valid waiver. **Tardiness and Absenteeism -. Acts of insubordination coupled with habitual tardiness are sufficient causes of termination.. -. Consider the circumstances attending the tardiness or absence.. 4. DISHONESTY, LOSS OF CONFIDENCE -. FRAUD: any act, omission, or concealment, which involves breach of legal duty, trust or confidence justly reposed and injurious to another.. REQUISITES a. fraud must be committed against the employer or representative; b. must be committed in connection with the employee’s work.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. THUS, single or isolated acts of negligence do not constitute a just cause for the dismissal of an employee.

(23) Labor law reviewer _________________________________. Labor Relations. 21. __________________________________. NOTE: There must be SUFFICIENT EVIDENCE that en employee had been guilty of a breach of trust or that his employer has ample reasons to distrust him. LOSS OF CONFIDENCE. -. To be a valid reason: it must be genuine; i.. it must be related to the performance of duties of the employee such as would show him thereby unfit to continue working for the employer;. ii.. must occupy a position of trust and confidence or to positions where the employee is routinely charged with the care and custody of employer’s money or property.. Managerial employees and other employees occupying positions of trust and confidence are entitled to security tenure, fair standards and protection of labor laws.. ***Proof Required -. proof beyond reasonable doubt is not necessary;. -. it is sufficient that there is some basis for such loss of confidence or if the employer has reasonable ground to believe or entertain the moral conviction that employee concerned is responsible for the misconduct.. GUIDELINES: a. should not be simulated b. should not be used as a subterfuge for causes which are improper, illegal or unjustified c. not arbitrarily asserted in the face of overwhelming evidence to the contrary d. must be genuine and not a mere afterthought e. must hold a position of trust and confidence f. good faith. 5. COMMISSION OF A CRIME OR OFFENSE -. This must be committed against the person of the employer or against any immediate member of the employer’s family.. ***Immediate Family: a. b. c. d. e. f.. Spouse; Ascendants; Descendants; Legitimate natural or adopted brothers and sisters; Relative by affinity in same degrees; and Those by consanguinity within the fourth civil degree;. -. Conviction for a crime is not necessary before the employee may be dismissed.. -. An employee exonerated from the criminal charge may be dismissed from employment if the employer has ample reason to mistrust him.. -. If acquittal from the offense does not negate the existence of a ground for loss of trust and confidence, with more reason should conviction fortify the mistrust.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. -.

(24) Labor law reviewer _________________________________. Labor Relations. 22. __________________________________. 6. ANALOGOUS CAUSES -. This would depend on the circumstances of each case.. -. The cause must be due to the voluntary and/or willful act or omission of the employee.. AUTHORIZED CAUSES. 1. 2. 3. 4.. introduction of labor-saving devices redundancy retrenchment to prevent losses closing or cessation of operation. Other Authorized Causes -. total and permanent disability disease not curable in six (6) months. -. valid application of union security clause expiration of period in term employment completion of project in project employment. -. failure in probation defiance of return to work order. -. relocation commission of illegal acts in a strike. -. resignation retirement death. •. To terminate the employment under Art. 283, the employer must serve a written notice at least one (1) month before intended termination to:. •. -. Employee, and. -. Department of Labor and Employment.. Payment of separation pay (SP): -. IF the cause is due to installation of labor saving devices: ü SP equivalent to at least one (1) month pay or to at least one month pay for every year of service. -. •. IF in case of retrenchment/closure or cessation of business: ü SP equivalent to one (1) month pay or at least one half month pay for every year of service.. An employee whose employment is terminated due to any causes under Article 283 except closure or cessation due to serious losses is entitled to separation pay.. 1. INTRODUCTION OF LABOR SAVING DEVICES -. Reduction of the number of workers in a company by the introduction of labor saving devices is justified.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. ART.283: an employer may terminate the employment of the employee due to the following: (IRRC).

(25) Labor law reviewer _________________________________ -. Labor Relations. 23. __________________________________. It must not be abused and should not be made in the pretext for easing out laborers because of their union activities.. REQUIREMENTS: 1. 2. 3. 4. 5. 6.. The installation of labor saving devices must be done in good faith. There must be some valid purpose. There must be due notice. There must be fair and reasonable criteria. There must be payment of separation pay. There is no other remedy available at the option of the employer.. -. It exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise.. -. A position is superfluous.. REASONS: i. ii. iii.. over hiring of workers; decreased volume of business; and dropping of a particular product line.. -. It is of no legal moment that the financial troubles of the company were not of private respondent’s making.. -. The determination of the existence of redundancy is not subject to the review of the Labor Arbiter or the NLRC, EXCEPT if it is exercises arbitrarily and maliciously.. 3. RETRENCHMENT -. This is one of the economic grounds to dismiss employees and is resorted to by an employer primarily to avoid or minimize business losses.. -. The employer bears the burden to prove his allegation of economic or business losses.. -. The termination of employment of an employee arising from retrenchment to prevent losses shall entitle the employee affected thereby to separation pay equivalent to one (1) month pay or at least one-half (½) of a month pay for every year of service whichever is higher.. -. Retrenchment is recognized as a preventive and curative measure.. -. Lack of work; where the continuance of the work of the employee is patently inimical to the interest of the employer. Business recession.. CAUSES. -. CRITERIA. Fire. Conservatorship contemplates not the liquidation of the company involved but the conservation of company assets and business during the period of stress. FOR. L AYING-OFF. -. Less preferred status;. -. Efficiency rating;. -. Seniority.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. 2. REDUNDANCY.

(26) Labor law reviewer _________________________________. Labor Relations. 24. __________________________________. BASIC REQUISITES: 1. It is necessary to prevent losses and such losses are proven. 2. Written notice to employees and to the DOLE at least one month prior to the intended date of retrenchment. 3. Payments of separation pay equivalent to one (1) month pay or at least a half (½) a month pay for every year of service. 4. Exercise of the prerogative to retrench employees in good faith for the advancement of its interests and not to defeat or circumvent the employee’s security of tenure. 5. Employer must use fair and reasonable criteria in ascertaining who will be dismissed or retained.. 1. The losses expected should be substantial and not merely de minimis in extent. 2. The substantial loss appended must be reasonably imminent, that is, perceived objectively and in good faith by the employer. There must be a certain degree of urgency for retren chment. 3. It must be reasonably necessary and effectively prevent the expected losses. The employer should have taken other measures prior to or parallel to retrenchment to forestall losses. 4. The alleged losses if already realized and the expected imminent losses sought to be forestalled must be proven by sufficient and convincing evidence. •. QUITCLAIMS: Even if there is the signing of quitclaims it will not by itself bar them from enjoining the complaint. Quitclaims executed by laborers are commonly frowned upon as contrary to public policy and ineffective to bar claims.. •. LIFO RULE (last in-first out) The rule indicates that of two (2) or more employees affected by a retrenchment program, the last one employed will be the first to go; seniority of the ones hired earlier thereafter prevails.. Distinction; Redundancy from Retrenchment Redundancy. Retrenchment Linked with losses. As to cause. Results from the fact that the position has became superfluous, in excess of what is needed.. As to effect. Separation pay is higher.. A cost cutting measure made immediately necessary by business reduction or reverses. Separation pay is lower.. 4. CLOSURE OF BUSINESS OR CESSATION REQUIREMENTS: a. Service of a written notice to the employees and to the DOLE at least one month before the intended date thereof;. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. S TANDARDS WHICH JUSTIFY RETRENCHMENT (Lopez Sugar Co. vs. Federation of Free workers, August 30, 1990).

(27) Labor Relations. Labor law reviewer _________________________________. 25. __________________________________. b. Cessation of or withdrawal from business operations must be bona fide in character; and c. Payment to the employees of termination pay amounting to at least half (½) a month pay for each year of service or one month whichever is higher, where closure is not due to serious business losses.. -. If the business is not losing but its owner, for reasons of his own wants to get out of business, he in good faith can do so anytime. No law forces anyone to go into business; no law compels anybody to stay in business. But the employees must be paid their severance pay.. -. In case of closure due to serious business losses, the employee is not entitled to termination pay. However, the serious losses must be duly proven.. ARTICLE 284: D ISEASE AS GROUND. FOR. TERMINATION. Conditions: 1. Employee is suffering from a disease. 2. His continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees. 3. There must be certification by a public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of six (6) months even with proper medical treatments. NOTE: A company’s own physician is NOT a competent public health authority. 4. Payment of separation pay equivalent to at least one (1) month salary or to one-half (1/2) month for every year of service whichever is greater. NOTE: A fraction of six months is considered as one year. •. If there be finding that the termination was illegal, the terminated employee may either be: a. Reinstated to his former position without loss of seniority rights; OR b. Recovery of back wages. NOTE: These twin remedies are distinct and separate. Though the grant of reinstatement commonly carries with it the award of back wages, the inappropriateness or non-availability of the one does not carry with it the inappropriateness or non-availability of the other.. •. “STRAINED RELATIONS”: Where the relationship of the employee and the employer has been severely strained by reason for their respective imputations of bad faith against each other, to order reinstatement would no longer serve any prudent purpose. In such situation, the court would order the payment of back wages and separation pay, instead of reinstatement. LIMITATIONS: It must be proven that the employee concerned occupies a position where he enjoys the trust and confidence of his employer, and that it is likely if reinstated an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the employee concerned (Globe-Mckay, March 3, 1992).. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. RIGHT TO CLOSE W HETHER L OSING OR NOT.

(28) Labor Relations. Labor law reviewer _________________________________ •. 26. __________________________________. MORAL DAMAGES are recoverable in dismissal cases only where the dismissal was attended by bad faith, fraud or constituted as an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy (Garcia, 234 SCRA 632).. ARTICLE 285: TERMINATION. BY. EMPLOYEE. Grounds: (SICO) 1. Serious insult by the employer or his representative on the honor and person of the employee. 2. Inhuman and unbearable treatment.. 4. Other causes analogous to any of the foregoing.. RESIGNATION It is defined as the act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to disassociate himself from his employment. Two Kinds of Resignation •. Voluntary Resignation This is beyond the control of the employer. Where the employees voluntarily signed the resignation letters apparently prepared by the company, the same are VALID. Where the employee voluntarily resigned and signed the quitclaim after receiving all the benefits, resignation is VALID and BINDING. The resignation may be withdrawn even if the employee has called it “irrevocable.” After its acceptance or approval by the employer, its withdrawal needs the employer’s consent. Filing of a certificate of candidacy by an employee of government-owned-or-controlled corporation constitutes a lawful cause for terminating employment relationship initiated by the employee himself, and he is considered resigned by operation of law (Omnibus Election Code). Requirements: 1. Resignation may be with or without a just cause. 2. Service of written notice on the employer at least a month in advance. 3. Acceptance by the employer or authorized representative.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. 3. Commission of a crime or offense by the employer or his representatives against the person of the employee or any of the immediate members of his family..

(29) Labor Relations. Labor law reviewer _________________________________. 27. __________________________________. General Rule: An employee who voluntarily resigns from employment is not entitled to separation pay. Exception: There can be entitlement to separation pay if: 1. there is a stipulation of such in the employment contract ; 2. provided in the collective bargaining agreement; 3. payment of the amount is sanction by established employer practice or policy. •. Forced Resignation or Constructive Dismissal Burden of Proof (SICO). F If the ground for quitting is SICO, the burden is on the employee because the employer cannot be required to prove SICO; otherwise, he would incriminate himself. F If the ground is transfer, the burden of proving that the transfer is for valid and legitimate grounds rests with the employer. Between a positive allegation and a negative allegation, the former is preferred.. ARTICLE 286: W HEN EMPLOYMENT DEEMED. NOT. TERMINATED. “FLOATING STATUS” 1. Bona fide suspension of the operation of the business or undertaking not exceeding six (6) months; 2. Fulfillment of the employee or a military or civic duty. NOTE: If the floating status lasts for more than six months, the employee may be considered to have been illegally dismissed from the service.. ILLEGAL DISMISSAL DEFENSES OF EMPLOYER IN ILLEGAL TERMINATION DISPUTES 1st LINE DEFENSES •. Complainant is an INDEPENDENT CONTRACTOR (I. C. Defense) An employer who interns into a contract with a contractor to perform work for the employer does not thereby create an employer-employee relationship between him and the employee of the contractor. Contracting is legitimate if the following circumstances concur:. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. The burden of proving that the questioned dismissal is for a just or authorized cause and with due process is upon the employer..

(30) Labor law reviewer _________________________________. Labor Relations. 28. __________________________________. F The contractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, and FREE FROM THE CONTROL AND DIRECTION OF THE PRINCIPAL in all matters connected with the performance of the work except as to the results thereof. F The contractor has substantial capital or investment. F The agreement assures the contractual employees’ entitlement to all labor rights and benefits. Complainant is an AGENT (Agent Defense) ü Complaint is the representative of the employer. ü There is absence of control. ü There are indicators of absence of control. F Complainant is paid commission; F Subject to rules and regulations regarding outcome of work; F Required to put up a performance bond; F Not required to observe hours of work; F Not required to devote his time exclusively to the company (de Los Reyes Test); F Time and effort depend entirely on his will and initiative (Basiao Test); F Not required to account for his time or submit record of his activities; F Required to liquidate and pay his account at the end of each day; F Contract may be terminated at the option of either party; F Complainant can employ his own helpers at his personal expense. •. Complainant is a CONSULTANT (Consultant Defense) Complaining physician is not a member of the respondent hospitals’ “Specialist Staff,” therefore, not under the employer’s control.. •. Complainant is a F REE L ANCE OPERATOR (Operator Defense) Power of control is absent.. •. Complainant is a L ESSEE (Boundary System Defense) In the Jardin Case (February 23, 2000) the taxi or jeepney drivers under the “boundary” system are employees of the taxi or jeepney owners / operators; so also are the passenger bus drivers and conductors.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. •.

(31) Labor Relations. Labor law reviewer _________________________________ •. 29. __________________________________. Complainant is not under the Respondent’s Control The right of control is not reserved.. •. Complainant, by Contrary Stipulation, is (Contrary Stipulation Defense). NOT AN. EMPLOYEE. If the contract is one of the CHOICES, there is no employeremployee relationship. It is one of relationship. ADHESION;. there. is. employer-employee. •. Complainant is the EMPLOYEE OF A JOB CONTRACTOR The circumstances for a job contracting to be legitimate must concur in order for the employer to avail of this defense. Otherwise, no employer-employee relationship. The contractor is the project owner’s agent (only contracting labor).. •. No Successor Employer Defense The principle of Piercing the Veil of Corporate Fiction applies only for the purpose of making corporate liability a personal liability of the incorporators as corporate officers; not the reverse. Instrumentality Rule Where one corporation is so organized and controlled and its affairs are conducted, so that it is in fact a mere instrumentality or adjunct of another, the fiction of the corporate entity of the “instrumentality” may be disregarded. Principle of Absorption It only applies when there is an express agreement. If there is bad faith, the employees remain to be employees of the successor employer. •. No Employment Contract Defense No substantial evidence to prove that an employment contract exists. No written contract defense unavailing. NOTE: If there is a stipulation against Employer-Employee Relationship, it must be struck down as contrary to law.. •. Unregistered Employer Defense NOTE: Non-registration of an association does not negate employment relations.. •. Contract-Laborers Defense. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. NOTE: Employer-Employee Relationship is a question of law and, therefore, it cannot be made the subject of agreement..

(32) Labor Relations. Labor law reviewer _________________________________ •. 30. __________________________________. Complainant is a PIECE-RATER NOTE: Payment by piece is just a mode of payment and does not change the essence of the relation.. 2nd LINE DEFENSES •. Employer-Employee Relationship is Admitted but: F Complainant is a PROJECT EMPLOYEE PRINCIPLE OF SUSPENSION OF WORK. If for a particular project, there is no tenure EXCEPT : (1) if continuously re-hired; (2) member of the work pool. Members of the work pool if considered employee of the construction company while in the work pool, are non-project employees or employees for an indefinite period. The completion of the project or any phase thereof will not mean severance of employer-employee relationship. N.B.: If not completed, the complainant cannot be terminated even if contract has already expired. Therefore, what counts is NOT EXPIRATION BUT COMPLETION. If the complainant was hired to carry out a specific project or understanding that is within the regular or usual business of the respondent, but which is distinct, separate, and identifiable (DSI) as such, from the other undertakings of the company, he is a project employee. If he was hired to do a job not within the regular or usual business of the respondent, which is identifiably separate and distinct and begins and ends at determined or determinable times, he is a regular employee. One (1) Year Rule (Art. 280) It applies only to casual employees and not to project employees especially if: (1) the gaps between their employment is lengthy; (2) they had been terminated upon completion of each project. F Complainant CONTRACT. is. under. a. TEMPORARY. EMPLOYMENT. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. The period during which there is no project to perform is NON-COMPENSABLE under the PRINCIPLE OF NO WORK NO PAY..

(33) Labor Relations. Labor law reviewer _________________________________. 31. __________________________________. The completion of the project and the names of the employees terminated must be reported to DOLE to make the defense tenable. F Complainant EMPLOYEE. is. a. CONTRACTUAL. EMPLOYEE. /. TERM. Complainant must not have rendered more than one (1) year of continuous or broken service with respect to the activity in which he is employed. •. Not Yet Regular (“Regular Contractual” Defense). F Complainant is employed on a “PER NEED” Basis. There must be no reasonable causal connection between the particular activity performed by the complainant and the usual business or trade of the respondent. F Complainant is a consultant whose term is Co-Terminus with Project. Indicators that the work is NOT co-terminus with project: (1) portion of contract that says “contingent upon progress accomplishment;” (2) the contract gives the respondent the right to determine the personnel and their number as the work progresses. F Complainant is NOT in the Payroll. THEORY OF “ON LEAVE WITHOUT PAY” EMPLOYEES The fact that workers are not regularly maintained in the payroll and are free to offer their services to other companies, when there are no projects, cannot defeat their status of regularity. The cessation of construction activities at the end of every project is foreseeable suspension of work. The employment relation is NOT SEVERED. The employees are strictly speaking not separated but simply ON LEAVE WITHOUT PAY until they are re-employed. It does not denote project employment. F Complainant is a PROBATIONARY EMPLOYEE (Expiration Defense). CONTRACT OF ADHESION RULE If the contract is ambiguous, interpret it in favor of regular employment status. Complainant must be properly apprised of the reasonable standards for regularization and he failed to meet. Due process must be observed.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. A CBA provision stating that employees are classified first as regular contractual and not yet entitled to CBA benefits except when they are promoted or regularized is VOID..

(34) Labor law reviewer _________________________________ •. Labor Relations. 32. __________________________________. Prescription ü 4 years – Illegal dismissal ü 3 years – Money claims. •. Res judicatat or Failure to Prosecute Non-submission of position papers. •. Improper Venue. REMEDIES / RELIEFS FOR ILLEGAL DISMISSAL The normal consequences of a finding of illegal dismissal are: • •. Immediate reinstatement; and Payment of full back wages (REFER TO ART . 279).. NOTE: Take note that damages and attorney’s fees are not mentioned. Therefore, the rule to apply is: what is NOT alleged, prayed for, and proven CANNOT BE AWARDED. On the other hand, even if not expressly prayed for, back wages and reinstatement can be ordered because their basis is the law. The two forms of relief are distinct and separate, one from the other. Though the grant of reinstatement commonly carries with it an award of back wages, the inappropriateness or non-availability of one does not carry with it the inappropriateness or non-availability of the other. There may be reinstatement without back wages, or back wages without reinstatement. But either requires a finding of illegal dismissal.. REINSTATEMENT Restoration to a state from which one has been removed. Employment for another is not a waiver of the right to reinstatement as it was done in the fulfillment of the worker’s obligation to minimize damages as a result of his unjustified dismissal. If the position previously occupied has already been filled up, the proper remedy would be to reinstate the dismissal employee to a SUBSTANTIALLY EQUIVALENT POSITION. However, the fact that the dismissal employee has already been replaced does not affect his right to reinstatement. The other workers hired are deemed to have accepted their employment as replacements with the knowledge the same is subject to the consequences of the labor dispute. An employee who, at the time of his dismissal was occupying a temporary or lower position cannot be ordered reinstated to a permanent or higher position.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. Substantial justice requires that workers who are economically disadvantaged must litigate before the nearest governmental machinery to hear and resolve the dispute..

(35) Labor law reviewer _________________________________. Labor Relations. 33. __________________________________. •. Reinstatement can no longer be effected in view of the LONG PASSAGE OF TIME or because of the realities of the situation.. •. It would be INIMICAL to the employer’s interest.. •. Reinstatement may no longer be FEASIBLE.. •. It will not serve the best INTERESTS of the parties.. •. The company would be PREJUDICED by the workers’ continued employment.. •. It will not serve the prudent purpose as when SUPERVENING facts have transpired which make execution unjust or inequitable.. •. There is a resultant STRAINED RELATIONS or irretrievable estrangements between the employer and the employee where the employee concerned occupies a position of trust and confidence and it is likely that if reinstated an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the employee. Reinstatement will not be insisted upon if it is shown that the employee was dismissed for valid and sufficient reason although the dismissal procedure was defective.. REINSTATEMENT IMMEDIATELY EXECUTORY Under Art. 223, the decision of the Labor Arbiter reinstating a dismissed employee is immediately executory even while the case is brought up on appeal. There must be Immediate execution even without a writ of execution. However, the employer is granted the OPTION to merely reinstate the employee in the payroll and is entitled to receive her salary and other benefits as if she were working. NOTE: Under Art. 224 (a), a Writ of Execution is needed for a judgment of reinstatement by the NLRC after it becomes final and executory.. CIRCUMSTANCES THAT BAR REINSTATEMENT. •. Dismissal for Cause An employer should not be compelled to allow an employee to continue in the service where a justifiable cause for his discharge exists.. •. Abandonment of Right or Laches An employee entitled to reinstatement may waive such right by his failure to report for work when he had the opportunity to do so.. S AINT L OUIS U NIVERSITY | College of Law | B AR O P E R A T I O N S C O M M I T T E E (2009). © 2009 BAR OPERATIONS COMMITTEE. Saint Louis University C OLLEGE OF LAW . All Rights Reserved| LABOR LAW SECTION (Team 2008; Team 2009) |. GROUNDS FOR SEPARATION PAY IN LIEU OF REINSTATEMENT.

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