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Labor Notes Disini1

Labor Notes Disini1

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Published by: Kim Jona Peralta Castillo on Nov 05, 2012
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LABOR 2 DISINI NOTES (PART 1: TERMINATION OF EMPLOYMENT)
1
 MA. ANGELA AGUINALDO ATENEO LAW 2010
TERMINATION OF EMPLOYMENTGENERAL CONCEPTSCONSTITUTIONAL FOUNDATION FOR THE RIGHTS OF LABOR
Article 2, Section 18
. The State affirms labor as a primary socialeconomic force. It shall protect the rights of workers and promote theirwelfare.
Article 13, Section 3.
The State shall afford full protection to labor, localand overseas, organized and unorganized, and promote fullemployment and equality of employment opportunities for all.It shall guarantee the rights of all workers to self-organization,collective bargaining and negotiations, and peaceful concertedactivities, including the right to strike in accordance with law. Theyshall be entitled to security of tenure, humane conditions of work, anda living wage. They shall also participate in policy and decision-makingprocesses affecting their rights and benefits as may be provided bylaw.The State shall promote the principle of shared responsibility betweenworkers and employers and the preferential use of voluntary modes insettling disputes, including conciliation, and shall enforce their mutualcompliance therewith to foster industrial peace.The State shall regulate the relations between workers and employers,recognizing the right of labor to its just share in the fruits of productionand the right of enterprises to reasonable returns to investments, andto expansion and growth.
SECURITY OF TENURE
Art. 279. Security of tenure
. In cases of regular employment, theemployer shall not terminate the services of an employee except for ajust cause or when authorized by this Title. An employee who isunjustly dismissed from work shall be entitled to reinstatement withoutloss of seniority rights and other privileges and to his full backwages,inclusive of allowances, and to his other benefits or their monetaryequivalent computed from the time his compensation was withheldfrom him up to the time of his actual reinstatement. (As amended bySection 34, Republic Act No. 6715, March 21, 1989)
Article 277. Miscellaneous Provisions. (b)
Subject to the constitutionalright of workers to security of tenure and their right to be protectedagainst dismissal except for a just and authorized cause and withoutprejudice to the requirement of notice under Article 283 of this Code,the employer shall furnish the worker whose employment is sought tobe terminated a written notice containing a statement of the causes fortermination and shall afford the latter ample opportunity to be heardand to defend himself with the assistance of his representative if he sodesires in accordance with company rules and regulations promulgatedpursuant to guidelines set by the Department of Labor andEmployment. Any decision taken by the employer shall be withoutprejudice to the right of the worker to contest the validity or legality ofhis dismissal by filing a complaint with the regional branch of theNational Labor Relations Commission. The burden of proving that thetermination was for a valid or authorized cause shall rest on theemployer. The Secretary of the Department of Labor and Employmentmay suspend the effects of the termination pending resolution of thedispute in the event of a prima facie finding by the appropriate officialof the Department of Labor and Employment before whom suchdispute is pending that the termination may cause a serious labordispute or is in implementation of a mass lay-off. (As amended bySection 33, Republic Act No. 6715, March 21, 1989).
NATURE OF THE RIGHT TO SECURITY OF TENURE
 
It is a jurisprudential doctrine that the right is bothconstitutional and statutory. Basis? Article 13, Section 2 ofthe Constitution and Article 279 of the Labor Code
 
LABOR 2 DISINI NOTES (PART 1: TERMINATION OF EMPLOYMENT)
2
 MA. ANGELA AGUINALDO ATENEO LAW 2010
IN WHAT WAYS CAN THE RIGHT TO SECURITY TO TENURE BEVIEWED?
 It can be viewed in three ways— 1.
 
Legal: constitutional and statutory2.
 
Economic: economic reality or economics of relationship3.
 
Social: one’s standing in the community depends on his work
QUIJANO V. BARTOLABAC
 
Employment is a property right
TOLENTINO V. NLRC
 
Security of tenure is a right of paramount value and shouldn'tbe denied on mere speculation
PHILIPS SEMICONDUCTORS V. FADRIQUELA
 
For a fixed-period employment not to violate the right tosecurity of tenure, the following must be satisfied:
o
 
Voluntary agreement between the parties
o
 
Each one dealt with one another more or less in equalterms with no moral dominance
WHY IS SECURITY OF TENURE AFFORDED THE LABORER? WHYDOES THE STATE AFFORD PROTECTION TO LABOR?
 
The State recognizes that one’s employment is one’s lifebloodand livelihood
 
Dependency and economic relations
 
Euro-Linea v. NLRC:
preservation of lives is a basic duty and itis more vital than preservation of company profits
DOESN'T THE STATE TRAMPLE ON MANAGEMENT RIGHTS WITHTHE PROTECTION IT AFFORDS LABOR?
 
No
 
The state recognizes management rights, alongside with thefact that it reserves the right to inquire why and how themanagement exercised its right
MANAGEMENT RIGHTS V. SECURITY OF TENURE
 
Again, the State recognizes management rights, as long as it isexercised in good faith and doesn't circumvent employee’srights
SONZA V. ABS-CBN BROADCASTING
 
For there to be entitlement to security of tenure, one mustestablish the existence of an employer-employee relationship
 
This was the case wherein it was held that Sonza was not anemployee of the company but instead is an independentcontractor. The payment of money doesn't automaticallymean there is an EER. The giving of benefits may arise fromcontractual rights but not of employment.
TEST OF EMPLOYER-EMPLOYEE RELATIONSHIP
1.
 
Hiring2.
 
Dismissing3.
 
Payment of wages4.
 
Controla.
 
This test is said to be the ultimate testb.
 
This test is satisfied if there has been a
reserved right of control
 
IS THE “REGULAR EMPLOYMENT” UNDER ARTICLE 279 THE SAMEWITH THE “REGULAR EMPLOYMENT” CONTEMPLATED IN ARTICLE280?
 
No, it pertains to being employed
 
All employees are afforded security of tenure regardless ofstatus
COVERAGE OF RIGHT
Art. 278. Coverage.
The provisions of this Title shall apply to allestablishments or undertakings, whether for profit or not.
Art. 280. Regular and casual employment.
 
The provisions of writtenagreement to the contrary notwithstanding and regardless of the oralagreement of the parties, an employment shall be deemed to beregular where the employee has been engaged to perform activities
 
LABOR 2 DISINI NOTES (PART 1: TERMINATION OF EMPLOYMENT)
3
 MA. ANGELA AGUINALDO ATENEO LAW 2010
which are usually necessary or desirable in the usual business or tradeof the employer, except where the employment has been fixed for aspecific project or undertaking the completion or termination of whichhas been determined at the time of the engagement of the employee orwhere the work or service to be performed is seasonal in nature andthe employment is for the duration of the season.An employment shall be deemed to be casual if it is not covered by thepreceding paragraph: Provided, That any employee who has renderedat least one year of service, whether such service is continuous orbroken, shall be considered a regular employee with respect to theactivity in which he is employed and his employment shall continuewhile such activity exists.
CLASSIFICATION OF EMPLOYMENT STATUS
 
This article is
not a yardstick 
for determining the existence ofthe an employment relationship because it
mainly distinguishes
 regular and casual employees, for purposes of determining theright of an employee to certain benefits, to join or form aunion, or to security of tenure (Phil. Global case, June 2005)
 
Any agreement may provide that one party shall renderservices for and in behalf of another for a considerationwithout being hired as an employee. This is true in the case ofindependent contractorship as well as in agency agreements.
REGULAR EMPLOYMENT, TEST OF DETERMINATION
An employment is deemed regular where the employee either:1.
 
Has been engaged to perform which are usually necessary ordesirable in the usual business or trade of an employera.
 
Opulencia Ice Plant and Storage v. NLRC, 46 SCAD 821:
Determination of regular or casual employment is notaffected by the fact of the employee’s regularpresence in the place of work is not required, themore significant consideration being that the work ofthe employee is usually necessary or desirable in thebusiness of the employer.b.
 
Tan v.
 
Lagrama, 387 SCRA 393:
the primary standardor test for determining regular employment is thereasonable connection between the particular activityperformed by the employee in relation to the usualtrade or business of the employer.c.
 
RJL Martinez v.
 
NLRC, 127 SCRA 445
: it can be inferredfrom the length of time that an employee has beenmade to do the job if the activities performed by himis usually necessary or desirable in the usual businessor trade of the employer.2.
 
Has rendered at least one year of service, whether such serviceis continuous or broken, with respect to the activity in whichhe is employed.a.
 
The employment is also considered regular but onlywith respect to such activity and while such activityexists.
b.
 
Caparoso v. CA, 15 February 2007
: even if an employeeis engaged to perform activities that are necessary ordesirable in the usual trade or business of theemployer, it does not preclude the fixing ofemployment for a definite period.
 
c.
 
Regular employment automatically attaches to theemployee upon the cessation of his employment ascasual employment
TEMPORARY EMPLOYMENT
 
Where an employee is engaged to work on a specific project orundertaking, the completion of which has been determined atthe time of the engagement of the employee
 
The decisive determinant should not be the activities that theemployees is called upon to perform, but the day certainagreed upon by the parties for the commencement andtermination of their employment relationship
 
Day certain: that which must necessarily come, although itmay not known when
 
While the SC upheld the validity of this form of employment, itdid so with a
caveat 
that where the circumstances wereapparent that the period has been imposed to frustrate theacquisition of regular status, the same should be struck downas contrary to law, morals, customs, public order, and publicpolicy.

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