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JUSTICE VICENTE S.E. VELOSO It shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance 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 production and the right of enterprises to reasonable returns to investments, and to expansion and growth. ART. 3. DECLARATION OF BASIC POLICY Afford protection to labor Promote full employment Ensure equal work opportunities regardless of sex, race, or creed Regulate the relations between workers and employers Assure worker’s rights to self-organization, collective bargaining, security of tenure, and just and humane conditions of work 7 Basic Rights of Workers Organize Bargain collectively Conduct peaceful concerted activities (including strike in accordance with law) Security of tenure Work under humane conditions Living wage Participate in policy and decision making processes affecting their rights and benefits Policy of Social Justice not meant to countenance wrongdoing. Separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual
LABOR LAW – set of laws and principles which protect and promote the interests of labor and regulate relations between capital and labor LABOR STANDARDS – laws which set out the minimum terms, conditions and benefits of employment that employers must provide or comply with and to which employees are entitled to as a matter of legal right LABOR RELATIONS – laws which regulate the institutional relationship between the employers and workers (usually organized into a union) SOCIAL LEGISLATION – the promotion of the welfare of all the people, the adoption by the government of measures calculated to insure economic stability of all the component elements of society thru the maintenance of proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, thru the adoption of measures legally justifiable, or extra-constitutionally, thru the exercise of powers underlying the existence of all governments, on the time honored principle of salus populi esta suprema lex (Calalang v. Williams) SOCIAL JUSTICE – humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objective secular conception may at least be approximated WELFARE STATE DOCTRINE – state promotes cause for the welfare of the society Sources of Labor Law: 1. Constitution 2. Statutes 3. SC Decisions 4. Opinions of DOJ Secretary 5. Implementing Rules & Regulations 6. Interpretations of DOLE / NLRC Constitutional Policy for Labor (Art. XIII, Sec. 3) The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
Ryan Quan 3C ’06-’07
strikes were not allowed. Classification of Employees under RA 6715: 1. doubts which involve implementation and interpretation of labor laws should be resolved in favor of labor. Ryan Quan 3C ’06-’07 JUSTICE VICENTE S. supervision of workers. all aspects of employment. the employer may not be required to give the dismissed employee separation pay. Separation pay therefore. NLRC. Managerial – lay down policies hire. (Eastern ShippingLines v. work supervision.LABOR LAW 1 intoxication or an offense involving moral turpitude. processes to be followed. the SC invalidated the rules and regulations issued by PAL because such were not consulted with the employees. 2 . Rational / Basis: Those who have less in life should have more in law. POEA. NLRC issues IRRs. or financial assistance. transfer employees. ART. and hiring. depends on the cause of dismissal. 4. February 2006) Right to strike not included in the Labor Code (LC) because LC is martial law legislation. firing. (Ha Yuan v. Meris. CONSTRUCTION IN FAVOR OF LABOR All doubts in the implementation and interpretation of the provisions of this Code. September 16. DOLE. including hiring. 5. working methods. NOTES: Laws cannot be implemented without IRRs. Fugoso) Property Rights vs. the heavier influence of the latter should be counterbalanced by the sympathy and compassion the law must accord to the underprivileged worker. Strike – temporary refusal to continue work due to an industrial or labor dispute Picketing – an expression of free speech Right of Labor to Participate in Policy-Making affecting their rights and benefits In PAL v. The spring cannot rise higher than the source. or whatever other name it is called. RULES AND REGULATIONS The Department of Labor and other government agencies charged with the administration and enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. fire. shall be resolved in favor of labor. work assignments. Blooming Mills case) ART. v. Inc. EO 200: Laws shall take effect 15 days after the publication in the OG and/or newspaper of general circulation. During martial law. etc. the courts will uphold them (Capitol Medical Center. VELOSO 2. In case of conflict between the interests of labor and capital. 166 SCRA 523) Can this provision be invoked in matters of evidence? YES. and not for the purpose of defeating or circumventing the rights of the employees under special laws or valid agreements. POEA. As long as the company’s exercise of the same is exercised in good faith for the advancement of the employer’s interest. Rank and file – all others not covered above Management Prerogative Except as limited by special laws. an employer is free to regulate. tools to be used. Such rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of general circulation. IRRs have force and effect of law. When the subject matter is covered by the Labor Code. 2005). or (2) the dismissal reflected on the employee’s moral character. The rules must not exceed the authority of the law. even if the question involves Rules of Evidence. dismissal and recall of workers. on the ground of social justice. etc. (Sibal case) Police power of the State is invoked by SC in cases regarding regulating relations between labor and capital. and may be accordingly awarded provided that the dismissal does not fall under either of 2 circumstances: (1) there was serious misconduct. lay-off of workers and the discipline. NOTES: Right to labor is a property right. like theft or illicit sexual relations with a fellow worker. including its implementing rules and regulations. 3.E. NLRC. Human Rights: Human rights prevail in case of conflict (Phil. (Primicias v. transfer of employees. place and manner of work. time. working regulations. Supervisory – effectively recommend laying down of policies. according to his own discretion and judgment.
hiring 2.” Worker is broader GR: LC applies to ALL workers.Sevilla v. Night club workers / GROs are employees.Abante was not required to report. no EER. Pajarillo case: Crew members of a fishing vessel allowed to work in other vessels are not employees because they have no obligation to remain with the vessel for a particular time. except as may otherwise be provided herein. LC applies to employees unless a particular provision provides otherwise. 83 of LC includes a resident physician as an employee. 2. there is presumption or interest in the result . San Miguel Jeepney Operators v. control (Chavez v. VELOSO: A resident physician is an employee. payment of wages 3. 61). Barber who shares in the proceeds of the shop is an employee and not a partner because control is present.interfering with means. 6. Always look at the specific provisions of LC. VELOSO payment of PAG-IBIG Fund contributions payment / remittance of contributions to the State Insurance Fund deduction of withholding fund deduction / remittance of SSS contributions EMPLOYER – EMPLOYEE RELATIONSHIP (EER) Primary Tests of EER: 1. Collection agents are not employees.controlling aspect that determines EER .Procedures relating to quasi-judicial functions ART. NOTES: Provision speaks of “workers” and not “employees. JUSTICE VICENTE S.IRR . not because of the commission.Insular Life case: not every form of control establishes EER . However. NLRC. .Abante used his resources Secondary Tests of EER: Ryan Quan 3C ’06-’07 EEE exists: Drivers paid on boundary basis are employees. embalming) is an employee. apprentices (Art.): there is control so EER exists Cosmopolitan Funeral Homes case: Supervisor of a funeral parlor prohibited from engaging in funeral-related jobs (i. Maraguinod case: Movie producers are employees. 75).LABOR LAW 1 2 rule making powers . Columbus case (2001): Bus collector hired on a first-come-first-served basis is an employee. APPLICABILITY All rights and benefits granted to workers under this Code shall. there is EER because of the salary paid. 3. BUT: Art. There is no such thing as a “talent. Buenaceda: Resident physicians are noy employees. 4. 2005) Control not only over the end product/RESULT of the work.Not required to sell at a particular place . Felix v. CA: No control if one is paid based on result. firing 4. Sir says what’s the difference between a jeepney collector and a bus collector? Ruga case: Crew members hired directly by the owner of the vessel are employees. they are agents.e. dropping of net. not all employees can enjoy the same. etc. Grepalife: If paid with salary and commission. going back. 80). and learners (Art. apply alike to all workers. NLRC: Jeepney collectors are independent contractors. but more importantly.E. . Sevilla case: those paid by results Philamlife v. Even if particular rights and benefits are accorded to be given by the employer.No interference from company .” they are employees also. whether agricultural or non-agricultural. Owner of the vessel has radio devise and directs manner of fishing (i. Caretakers are employees. control over the MEANS through which the work is accomplished. not all employees are necessarily covered. Ansaldo: registered representatives of insurance companies are mere agents Shoe-shine boy is not an employee because he is paid by the customer and only shares in the 3 .e. 1. EER does not exist: If one is paid only commission. LC covers workers such as handicapped (Art. Badges of Control (Abante case) SC held that there is no EER because: .
Thus. except in case of merger and consolidation. illegal dismissal cases involving corporate officers are cognizable by the regular courts. One may be paid on the basis of results or time expended on the work. VELOSO Governmental instrumentalities immune from suit cannot be made to answer for labor claims unless there is a waiver (i. No.LABOR LAW 1 proceeds with the factory. employees recruited. 244 says that they can exercise self-organization for purposes of collective bargaining. If asked to work in a business concern. Lagrama. Code. LC applies. tools. JUSTICE VICENTE S. supplied or placed by such contractor or subcontractor are performing activities directly related to the main business of the principal 3. not by NLRC. An employee of a gov’t agency is an employee under the LC. The factory does not have control. 18-02: JOB CONTRACTING VS. and may or may not acquire an employment status. Thus.an arrangement where the contractor or subcontractor merely recruits.R. Tuberculosis Society case: Even if PSTI employees are given benefits by the GSIS. LABOR-ONLY CONTRACTING * rules implementing Arts. DEPARTMENT ORDER NO. he is an employee of the company. not a basis for determining the existence or absence of employeremployee relationship. service or work to a contractor or subcontractor Labor-only Contracting (LOC) . supplies or places workers to perform a job. regardless of whether such job. It is a method of computing compensation. Code).e. Art. contractor does not exercise the right to control over the performance of the work of the contractual employee What is “substantial capital or investment” as used in the definition of labor-only contracting? It refers to capital stocks and subscribed capitalization in the case of corporations. Government employees: GR: Civil Service laws apply GOCC which have original charters – governed by civil service laws GOCC organized under Corp. 151228) Corporate officers: not employees.E. Art. (Tan v. LRTA bought Metro Transit (created under Corp. LRTA has an original charter. work or service to be performed 2. employee of the agency. Employees of government agencies A government agency is a means by which a government acts or a government act or function is performed. Employees of Metro Transit do not become employees of LRTA. Code – LC applies Phil. G. work or service is to be performed or completed within or outside the premises of the principal Contractor / Subcontractor – any person or entity engaged in a legitimate contracting and subcontracting arrangement Contractual Employee – one employed by a contractor and subcontractor to perform or complete a job. Civil Service laws apply. work or service pursuant to an arrangement between the latter and a principal Principal – any employer who puts out or farms out a job. Security guards: GR: employees of contractor E: if directly hired by company Janitor: If supplied by janitorial agency. work or service for a principal. no substantial capital or investment relating to the job. and any of the following elements are present: 1. work or service within a definite predetermined period. 106-109 of the LC Contracting / Subcontracting – an arrangement whereby a principal agrees to put out or farm out with contractor or subcontractor the performance or completion of a specific job. entering into a contract in a commercial or proprietary capacity). Paid by results: supervised – employee unsupervised – not an employee Payment by result is a method of compensation and does not define the essence of the relation. depending on whether the elements of an employer-employee relationship are present or not. the fact remains that PSTI was created under the Corp. 276 says that their salaries shall be fixed by Congress. Ryan Quan 3C ’06-’07 4 .
The liability under these articles. or procuring of workers. [People v. Delamira: involves security guards of MERALCO. The labor-only contractor is an agent of the principal. as if it were the direct employer. the worker is an employee of the principal. transporting. enlisting. Migrant Worker .A person who is to be engaged. contracting. machineries and work premises. When there is LOC. Meralco v. transporting. (Rosewood Processing. contracting. v NLRC. whether employed or unemployed Recruitment and Placement – any act of canvassing. actually and directly used by the contractor and subcontractor in the performance or completion of the job. the guards are employees of the agency JUSTICE VICENTE S. international organizations. NLRC. enlisting. whether for profit or not The presumption is that the individual or entity is engaged in recruitment and placement whether dealing with two or more persons to whom an offer or promise of employment is made in the course of “canvassing. May 21. where it is not shown that the principal/indirect employer had conspired with the contractor in effecting the illegal dismissal. the end to be achieved. the manner and means to be used in reaching that end. et. Presence of 1 handicap (either no substantial capital or no sufficient investment) makes the contractor a labor-only contractor. since there is no LOC. Articles 106. and includes referrals. or has been engaged in a remunerated activity in a state of which he or she is not a legal resident Seafarers are considered contractual employees because their employment is contractually fixed for a certain period. VELOSO utilizing.E. 1998) NOTES: LOC is prohibited by law. utilizing. the principal is solidarily liable. (Millares & Lagda v. The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. In case of non-payment of wages by the agent. is the indirect employer liable for backwages? NO. Is direct-hiring allowed? GR: No employer may hire a Filipino worker for overseas employment. 107. 16 & 25 allows agencies belonging to the private sector authorized by DOLE. Inc. hiring or procuring workers. implements. locally or abroad. 142 SCRA 664 (1986)] Who has authority to recruit and place employees? GR: Only government agencies can engage in recruitment and placement. contract services.LABOR LAW 1 equipment. to determine: 1. Panis. work or service contracted out What is the “right to control” as used in the definition of labor-only contracting? It refers to the right reserved to the person for whom the services of the contractual workers are performed. al. 29 July 2002) Licensing & Regulation of Recruitment & Placement Agencies Domestic – DOLE Secretary / Regional Director Overseas – POEA Administrator Closure of non-licensed recruitment agencies NCR: DOLE Secretary / POEA Administrator Outside NCR: DOLE Regional Director Lifting of closure or suspension order POEA Administrator • Decision appealable to DOLE Secretary • DOLE Regional Director cannot lift closure order RECRUITMENT & PLACEMENT OF WORKERS RA 8042: MIGRANT WORKERS & OVERSEAS FILIPINOS ACT OF 1995 Worker – any member of the labor force. and 109 hold an employer jointly and severally liable with its contractor or subcontractor. In case of illegal dismissal. is engaged. does not extend to the payment of backwages and separation pay of employees who were constructively or illegally dismissed by the contractor. is engaged. E: Arts. and others allowed by DOLE is exempted from the ban on direct-hiring. E: Members of the diplomatic corps. however. and 2. Ryan Quan 3C ’06-’07 5 . promising or advertising for employment.
9. 3. 11. directly or indirectly. transporting. To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency. To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment. An employee of a recruitment agency may also be held liable as a principal where it is shown that he actively and consciously participated in illegal recruitment. contracting. one cannot claim that the illness was related to work. any subsequent negotiation is not binding. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor. 13. hiring. utilizing. To furnish or publish any false notice or information or document in relation to recruitment or employment. 2. A repatriated seafarer must report to the principal or recruitment agency for postemployment medical examination in order to be allowed to claim compensation due to illness (related to work). To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations Failure to actually deploy without valid reason as determined by DOLE Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment. To fail to file reports on the status of employment. SC held that if the death is 8 months after repatriation. and accessories. in cases where the deployment does not actually take place without the worker’s fault 6. otherwise. testimony. management. VELOSO who has not applied for employment through his agency. 4. or procuring workers and includes referring contract services. information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code. Gaoshieng Phils. placement vacancies. In case of juridical persons. or to make a worker pay any amount greater than that actually received by him as a loan or advance. Died 8 months after repatriation. Private employment agencies are held jointly and severally liable with the foreign-based employer for any violation of the recruitment agreement or Ryan Quan 3C ’06-’07 6 . To influence or to attempt to influence any person or entity not to employ any worker JUSTICE VICENTE S. when undertaken by a non-licensee or non-holder of authority Acts which are considered as illegal recruitment: 1. 10. 7.any act of canvassing.E. After the expiration of a POEA-approved contract. remittance of foreign exchange earnings.LABOR LAW 1 NOTES: The Labor Arbiters of the NLRC have jurisdiction over money claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment. or direction of their business shall be liable. 5. the officers having control. 8. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines. any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor. Who are criminally liable for illegal recruitment? Principals. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives. departures and such other matters or information as may be required by the Secretary of Labor. separation from jobs. case: An OFW was repatriated 28 days after leaving. 12. they are void. Illegal Recruitment . promising or advertising for employment abroad. To charge or accept. enlisting. whether for profit or not. To give any false notice. Overseas employment contracts must be approved by the POEA. accomplices.
By a syndicate . April 16.. • Illegal recruiters may. I. ART. there is no illegal recruitment in large. That any employee who has rendered at least one year of service. 38 (c) declared unconstitutional in Salazar v. there is illegal recruitment by a syndicate. (People v. 281. whether such service is continuous or broken. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided. What is the prescriptive period of illegal recruitment cases? 5 years. 11 April 2002) JUSTICE VICENTE S. except where the 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 or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. Fernandez. (People v.T.E. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. Rule 113 of the 1985 Rules on Criminal Procedure. They have to go through the judicial process. 2001) What are the circumstances qualify illegal recruitment to an offense involving economic sabotage? 1. If there is only one complainant in several complaints. CASUAL. In large scale – committed against 3 or more persons individually or as a group These categories are separate or independent categories. An employee who is REGULAR. an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer.carried out by a group of 3 or more persons confederating with one another 2. How is illegal recruitment proved? It must be shown that the accused gave the complainants the distinct impression that he had the ability to send the complainants abroad for work such that the latter were convinces to part with their money in order to be employed. Illegal recruitment involving economic sabotage prescribes in 20 years. Angeles. The court where the case is first filed acquires jurisdiction to the exclusion of all other courts. be arrested without warrant under Sec. Only a judge may issue warrants. however. shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. et. PROBATIONARY EMPLOYMENT Ryan Quan 3C ’06-’07 7 . (Sevillana vs. unless it is covered by an apprenticeship agreement stipulating a longer period. VELOSO Jurisprudence / Doctrines related to illegal recruitment: Presumption of innocence No requirement as to what type of evidence must be presented One can be convicted of both illegal recruitment and estafa (if all elements of estafa are present) DOLE Secretary / POEA cannot issue warrants (Art. Corp. 280. PROBATIONARY EMPLOYMENT Probationary employment shall not exceed six (6) months from the date the employee started working. ART. There must at least be a promise or offer of an employment from the person posing as a recruiter. Achacoso) Illegal recruitment exists where one shows another that he has capacity to have the latter employed for work abroad. al. REGULAR AND CASUAL EMPLOYMENT The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties.. 07 March 2002) May the Secretary of Labor or the POEA Administrator issue warrants of arrest or search and seizure warrants? NO. (citizen’s arrest) Where is the venue of an illegal recruitment case? RTC of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense. 5. But where there are three conspiring recruiters.LABOR LAW 1 contract of employment.
Art.a probationary employee is considered regular . 280 does not apply to OFWs. Cioco case (2004) and Philsystems case: repeated hiring does not necessarily mean regular employment . No. allows fixed-term employment SM-style contractual supposed to be illegal but Brent case says that the general law (NCC) can be made to apply. 2005. The practice of entering into employment contracts which would prevent the workers from becoming regular should be struck down as contrary to public policy and morals. “Day Certain” Rule – project employment ends on a certain date does not end on an exact date. Philips case: Employee hired on a fixed-term is regular if job is necessary and desirable to business of employer Project Employment One whose employment has been fixed for a specific project or undertaking the completion of which has been determined at the time of engagement of the employee. the period is not the determining factor.LABOR LAW 1 allowed to work after a probationary period shall be considered a regular employee. Pascua: Regularization is not a management prerogative. the performance of a job for at least a year is sufficient evidence of the job’s necessity if not indispensability to the business.R.According to SC. October 14. (LC does not apply to migrant workers.Veloso says that this is a situation where a regular employee becomes regular again and this is permanence. The employment is considered regular. Nature of employment determines regular employment. employee does not necessarily become regular Maraguinot case: Repeated hiring on a project to project basis is considered necessary and desirable to the business of the employer. Casual Employment Activity performed is not usually necessary or desirable in the usual business or trade of the employer. but only with respect to such activity and while such activity exists. locally-hired employees. he is considered a REGULAR employee with respect to the activity in which he is employed and his employment shall continue while such activity exists Despite the distinction between regular and casual employment. whether such service is continuous or broken. 164736. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer.after 6 months. not project and not seasonal Except: if he has rendered at least 1 year of service. a general law. becomes regular . so that even if the period is more than 1 year. and shall be subject to the same duties as may be Ryan Quan 3C ’06-’07 JUSTICE VICENTE S. But the Civil Code. duress. This is the rule even if its performance is not continuous and merely intermittent. Also. 280 does not ensure permanency. employee is regular. but on the completion of the project Phil. PAL v.) Poseidon Fishing case: if engaged in deep-sea fishing. Global Communication case: usual and desirable does not matter because employer hires without intent of making them regular VELOSO: Cioco and Philsystems are correct. Catapang. for “practical considerations” of hiring competent or skilled workers. May be terminated only for just / authorized causes Test to determine regular employment Universal Robina Corporation v. RA 8042 does. Art. 280 applies 8 . G. or improper pressure exerted on the employee Brent case: fixed-term employment repealed by LC. It is a mandate of law.E. Fixed-Term Employment Period is agreed upon knowingly and voluntarily by the parties without force. Thus. VELOSO granted by law to regular employees during the period of their actual employment. Regular Employment Regular employees: usual and desirable to the business of the employer Regular employment does not mean permanent employment . The primary standard of determining regular employment is the reasonable connection between the particular activity performed by the employee to the usual trade or business of the employer. every employee shall be entitled to the same rights and privileges.
the employee becomes regular. when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to employee at the time of his engagement If allowed to work after the probationary period. the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement.R. for just / authorized causes b. 2005 There is probationary employment where the employee. In all cases of probationary employment.LABOR LAW 1 Probationary Employment GR: Not to Exceed 6 mos. and (3) such service must have been satisfactory. despite the seeming restrictive language of Article 281. when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer. A voluntary agreement extending the original probationary period to give the employee a second chance to pass the probation standards constitutes a lawful exception to the statutory limit. (2) the teacher must have rendered three consecutive years of service. Voyeur Visage case (2005): After lapse of probationary period (6 months). SECURITY OF TENURE In cases of regular employment.E. Exceptions: a. the Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period. (UST v NLRC. the employer gives the employee a second chance to pass the standards set May be terminated: a. Workers who have performed the same tasks every season for several years are considered regular employees for their respective tasks. inclusive of allowances. National Foundation of Sugarcane Workers-Food and General Trade) SECURITY OF TENURE ART. the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title.G. 26. Where no standards are made known to the employee at that time. (Hacienda Fatima v. 149371. Jan. It is senseless if you cannot give the OFWs the reliefs accorded by Art. (Mariwasa Manufacturing. Inc.. is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment. he shall be considered a REGULAR employee But Art. 279. what are the legal requirements for acquisition of permanent employment? (1) The teacher is a full-time teacher. Jr. Veloso says this is wrong. April 13. Such an extension may be lawfully agreed upon. 1990) Seasonal Employment work or services to be performed is seasonal in nature and the employment is for the duration of the season The fact that seasonal workers do not work continuously for one (1) whole year but only for the duration of the season does not detract from considering them in regular employment since in a litany of cases. Inc. Probationary employee may be dismissed before end of the probationary period. Agustin. v Leogardo. 279. and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. VELOSO YES. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages. 15. 281 apploes to OFWs. Aberdeen Court. NOTES: Applies to all establishment or undertakings whether for profit or not 9 . based on reasonable standards made known to him at the time of engagement. he shall be deemed a regular employee. The services of an employee who has been engaged on probationary basis may be terminated only for a just cause. but merely considered on leave until re-employed. v. 1989) For private school teachers. May the employer and the employee validly agree to extend the probationary period beyond six months? Ryan Quan 3C ’06-’07 JUSTICE VICENTE S. upon his engagement. Feb. voluntary agreement of parties (especially when nature of work requires a longer period) c. No. covered by an apprenticeship agreement stipulating a longer period b.
279 does not apply to project employees.can be committed only by confidential and managerial employees . Closure of business as a result of grave financial loss 5. the order violated must have been reasonable.improper or wrong conduct. . 2. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. Redundancy 3.Previous infractions by the employee should have been acted upon appropriately by the employer before terminating the former. CONSTRUCTIVE DISMISSAL EMPLOYER ART. 2000) Elements of Willful Disobedience as a just cause for dismissal: Ryan Quan 3C ’06-’07 . October 4. Examples of Analogous Cases: . relate to the performance of the employee’s duties.confidential employees – charged with custody and protection of employer’s property like a cashier (this is different from the “confidential employees” in labor relations) A criminal case need not be actually filed.sexual harassment ART. employee has become unfit to continue working for the employer (Phil. a forbidden act. Commission of acts constituting a crime is sufficient.violation of safety rules . Closure not due to losses NOTES: Redundancy exists where the services of an employee are in excess of what is reasonably 10 JUST CAUSES. serious. Thus. VELOSO employee’s assailed conduct was willful or intentional. willful in character. a dereliction of duty.gross inefficiency . the willfulness being characterized by a wrongful and perverse attitude. Commission of a Crime or offense by the employee against the person of his employer or any immediate member of his family or duly authorized representative 5. AUTHORIZED CAUSES FOR TERMINATION Grounds: 1. or the entire absence of care. JUSTICE VICENTE S. (see how full backwages are computed) Full backwages are computed from the time wages are withheld up to the time the employee is actually reinstated. October 11. you cannot demand wages for the time when there is no project. and implies wrongful intent and not mere error in judgment. lawful. 283. AUTHORIZED CAUSES. the transgression of some established and definite rule of action. Aeolus v NLRC. Introduction of labor-saving devices 2.E. JUST CAUSES FOR TERMINATION BY Grounds: SoMe WiD GAN FWeT CO 1. Fraud or Willful breach by employee of the Trust reposed in him by his employer or duly authorized representative (not mere suspicion) 4. . To be serious within the meaning and intendment of the law. Serious Misconduct or Willful Disobedience by the employee of the lawful orders of his employer or representative in connection with his work (work-related) 2.Implies a want or absence of or failure to exercise slight care or diligence. 282. 2005) GROSS and HABITUAL must concur together. 3. the misconduct must be of such grave and aggravated character and not merely trivial or unimportant (Villamor Golf Club v Pehid. Other analogous cases NOTES: Serious misconduct . 2005) Elements of Misconduct as a just cause for dismissal: 1. In the case of project employees.violation of code of discipline . Gross And habitual Neglect by the employee of his duties 3.immorality . 2.LABOR LAW 1 Project employees have no security of tenure. 1.. made known to the employee and must pertain to the duties which he has been engaged to discharge (Micro Sales Operation Network v NLRC. Fraud or willful breach of trust .failure to heed an order not to join an illegal picket . Retrenchment 4.wrongful acts of employee against the company .
Standards to justify retrenchment: 1. in effect. CA. G.” It is the inherent prerogative of an employer to transfer and reassign its employees to meet the requirements of its business.R. The employer’s privilege to transfer its employees to different Ryan Quan 3C ’06-’07 11 . Difference between redundancy and retrenchment: In reducndancy. In security agency parlance. Be that as it may. JUSTICE VICENTE S. Resorted primarily to avoid or minimize business losses. v Fuentes. company has no financial problems. The exercise of the prerogative should not defeat an employee's right to security of tenure. Vargas. dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise (thus it only requires superfluity not duplication of work) The redundancy SHOULD NOT have been created by the EMPLOYER. the sanction to be imposed upon him should be tempered because the dismissal process was.R. It be reasonably necessary and likely to effectively prevent the expected losses.) No formal dismissal b. 2005. The substantial loss apprehended must be reasonably imminent 3. Abandonment is incompatible with constructive dismissal. 2005. 4. the prerogative of the management to transfer its employees must be exercised without grave abuse of discretion. 2005). December 14. whichever is higher. in retrenchment. December 16.LABOR LAW 1 demanded by the actual requirements of the enterprise. 2. coupled with a clear absence of any intention of returning to his or her work. No. the sanction should be stiffer because the dismissal process was initiated by the employer’s exercise of his management prerogative CONSTRUCTIVE DISMISSAL a. G. 165811. 2) payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service. If the dismissal is based on a just cause under Article 282 but the employer failed to comply with the notice requirement. No. Validity of a Redundancy Program DAP v. The losses expected should be substantial and not merely de minimis in extent. If the dismissal is based on an authorized cause under Article 283 but the employer failed to comply with the notice requirement. The employer must comply with the following requisites to ensure the validity of the redundancy program: 1) a written notice served on both the employees and the Department of Labor and Employment (DOLE) at least one month prior to the intended date of retrenchment. Veterans Security Agency v. requires a deliberate and unjustified refusal of an employee to resume his work.E. insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment. The employer should have taken other measures prior or parallel to retrenchment to forestall losses. In cases of closure not due to losses. being placed “off detail” or on “floating” status means “waiting to be posted. it must NOT be in BAD FAITH. and the expected imminent losses must be proved by sufficient and convincing evidence (Oriental Petroleum & Minerals Corp. 3) good faith in abolishing the redundant positions. as a just and valid cause for termination. Abandonment. 159293. A position has become superfluous as an outcome of a number of factors such as overhiring of workers. The alleged losses if already realized. company suffers from financial problems. initiated by an act imputable to the employee. decreased volume of business. VELOSO 4) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. October 14. Constructive dismissal exists when an act of clear discrimination. Article 286 applies only when there is a bona fide suspension of the employer’s operation of a business or undertaking for a period not exceeding 6 months.) The employee is placed in a situation by the employer such that his continued employment has become UNBEARABLE.
DISEASE AS GROUND FOR TERMINATION When his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees There is a certification by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of 6 months even with proper medical treatment The requirement for a medical certificate cannot be dispensed with. October 25. the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. 284. commission of a crime against person of the employee or any of the immediate members of his family d. ART. Temporary Lay-off must not exceed 6 months.E. separation pay need not be paid to an employee who voluntarily resigns. it would sanction the unilateral and arbitrary determination by the employer of the gravity or extent of the employee’s illness and thus defeat the public policy on the protection of labor. unjustified refusal of an employee to resume his/her employment.R. no need to pay separation pay Abandonment means the deliberate. This is negated by immediate filing of an action for ILLEGAL DISMISSAL. retrenchment – must give notice 1 month before retrenchment. employee may be held liable for damages for failure to give notice b.. 285. otherwise. If the agreement was Ryan Quan 3C ’06-’07 JUSTICE VICENTE S.e. CA. serious insult on the honor and person of employee by the employer or his representative b. bona fide suspension of the operation of a business/undertaking for a period of not more than 6 months b. TERMINATION BY EMPLOYEE a. (Manly Express v Payong. Two elements must be proved: 1) the intention to abandon. fulfillment by the employee of a military or civic duty Employer shall reinstate the employee to his former position without loss of seniority rights IF employee indicates his desire to resume his work not later than 1 month from resumption of operations of his employer or his relief from the military or civic duty 12 . Waivers and quitclaims. inhumane and unbearable treatment accorded to the employee c. WHEN EMPLOYMENT NOT DEEMED TERMINATED The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months. an employer who agrees to expend such benefit as an incident of the resignation should not be allowed to renege in the performance of such commitment. VELOSO voluntarily entered into and represented a reasonable settlement. Grounds a. Employment NOT Deemed Terminated a. No. In all such cases. at least 1 month prior notice 2. other causes analogous to the foregoing 2. Options of employer (i. or the fulfillment by the employee of a military or civic duty shall not terminate employment. WITHOUT JUST CAUSE 1. However. and 2) an overt act from which it may be inferred that the employee has no more intent to resume his/her work.LABOR LAW 1 workstations cannot be used as a subterfuge to rid itself of an undesirable worker. No separation pay in resignation. Exceptions. WITH JUST CAUSE 1. G. Notice not necessary Resigning employee not entitled to separation pay. 140812 August 28. et al. simply because of a change of mind. 2005) ART. pay separation pay 2. 2001 Generally. security agency) in case of pull out by client: 1. 286. closure – must comply with 1 month advanced notice. Not all waivers and quitclaims are invalid as against public policy. ART. it is binding on the parties and may not later be disowned. when valid Candido Alfaro v. unless company policy gives it.
January 27. It is valid although declared irregular/ineffectual. In cases of just and authorized causes. IT IS NOT A PENALTY. if more than 1 month. JUSTICE VICENTE S.1 month advanced Investigation notice to DOLE Non-compliance with due process requirements Serrano (G.notice of the charge month before . 117040. the burden of proof as to the amount to be paid the employee rests upon the employer since he is in custody of documents that would be able to prove the amount due. When the dismissal is without just or authorized cause. burden of proof refers to the amount of proof to be adduced In money claims. 17. Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code. Such a status should not exceed six-months. if it does. DUE PROCESS NOTES: In cases of dismissal. employer has the burden of proof to show that the dismissal falls under the just and authorized causes. 2004 modifies Serrano Ryan Quan 3C ’06-’07 13 . VELOSO ART. the employee must be actually reinstated or reinstated in the payroll officers liable only if with malice and bad faith Floating Status It is legal. PLDT) Due process refers to the process to be followed. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. if termination is due to just causes. Nov. whether dismissed for just cause or authorized cause but without prior notice. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off.R.LABOR LAW 1 Preventive Suspension justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers (there is a REASONABLE POSSIBILITY of the employee posing such a threat). 277 (b) Just Causes (282) Authorized Causes (283) Twin Notice Twin Notice .2000) Termination due to authorized cause without giving the notice required under the Labor Code is not a violation of due process. (Tolentino v. is entitled to full backwages from the time he was terminated until the decision finding cause becomes final. He shall however be entitled to SEPARATION PAY AND BACKWAGES subject to the following rules: When the dismissal is for a cause. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. NLRC. such as in the case of security guards who have no assignment. backwages shall be computed from the time of his dismissal until his actual reinstatement.B.notice that employee installation of LSD. N. it amounts to a dismissal. Agabon v. the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. or investigation) closure . is guilty (after retrenchment.notice to employee1 . such as the payroll. due process must be observed Due process requirements under Art. Serrano. must not exceed 1 month only for the purpose of investigating the offense to determine whether he is to be dismissed or not. no separation pay is due. although a case of termination for authorized cause also covers termination due to just cause.E. MISCELLANEOUS PROVISIONS b. the employee. 277.
inclusive of allowances.000. February 6. Unless the SC provides otherwise. is justified only if the employee was unjustly dismissed. 1 month pay for every year is always higher if the employee has served for more than 1 year. Jaka Foods case (2004) SC distinguished between non-compliance of due process requirements in just and authorized causes.In case of strained relations (applies to confidential and managerial employees only) . w/o procedural due process is not an illegal dismissal which warrants backwages.” The indemnity should be in the form of nominal damages. employee is being dismissed due to his fault) International Timber Corp. However. may be vindicated. Payment of backwages and other benefits. The Court decided to follow Wenphil that where the dismissal is for a just cause. v Ortega. and to his other benefits or their monetary equivalent computed Ryan Quan 3C ’06-’07 .000 to Php 10. 279 An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages. including reinstatement.LABOR LAW 1 Dismissal for an authorized or just cause. et al. VELOSO from the time his compensation was withheld from him up to the time of his actual reinstatement. Where reinstatement is ordered. but the position is already filled up.R.000 nominal damages (because in just causes. the ruling would have no retroactive effect. separation pay of 1 month for every year shall be paid. the dismissed employee must still be reinstated if it is still possible. Computation of separation pay Installation of labor• 1 month pay or 1 saving devices month pay for every year of service Redundancy whichever is higher. 279 to the effect that termination is illegal only if it is not for any of the justified or authorized causes provided by law. Cases where reinstatement is impossible: . case (2006) SC reduced the nominal damages from Php 30. which is adjudicated in order that a right of plaintiff. pay later. Authorized causes – Php 50.In case of position has been abolished (applies to both managerial and rank and file) Moral and exemplary damages may also be awarded. the lack of statutory due process should not nullify the dismissal or render it illegal. JUSTICE VICENTE S. VELOSO: There is no hard and fast rule in terms of the amount of damages to be awarded. Why is Agabon not given retroactive effect? The principle in law giving retroactive effect where the subsequent law is corrective in character does not necessarily apply to judicial decisions. NO. 2006 An order of reinstatement by the labor arbiter is not the same as actual reinstatement of a 14 RELIEFS FOR ILLEGAL DISMISSAL ART. payment of backwages Triad Security & Allied Services.000 nominal damages Just causes – Php 30. Inc. employee entitled only to nominal damages The Court interpreted Art. Reinstatement. Such computation is because the retrenchment was illegal and the employee was entitled to reinstatement. which has been violated by the defendant.E. The indemnity should be stiffer than that provided in Wenphil to discourage the abhorrent practice of “dismiss now. the employer should indemnify the employee for the violation of his rights. 160871. • 1 month pay or at least 1/2 month pay for every year of service whichever is higher Retrenchment to prevent losses Closures or cessation of operations of establishments or undertaking NOT due to serious business losses or financial reverses Disease Closures or cessation of • no separation pay operations due to serious business losses or financial reverses * a fraction of at least 6 months is considered 1 year If the retrenchment is later declared illegal. G.
Until the payment of separation pay is carried out. the employer should not be allowed to remain unpunished for the delay. plus 2. JUSTICE VICENTE S. if not outright refusal. COMPULSARY – 65 years old/ regardless or years of service (company not bound to dismiss employee) Benefits 1/2 month salary per year of service which shall include: 1. their obligation to the illegally dismissed employee. 1 + no. the salary to be paid should be that for the unexpired portion. migrant workers Art. Reading book/s in addition to this is highly recommended. Thanks to Lea Mateo for the help and friendship. we could not fault them for their perseverance in looking for and eventually securing new employment opportunities instead of remaining idle and awaiting the outcome of the case. but to seek new employment in order to earn a decent living. other benefits as maybe agreed upon by employer and employee (a fraction of at least 6 months considered as 1 year) Minimum benefits to be received = (no. ACKNOWLEDGEMENTS Parts of this reviewer were taken from the Labor Law Reviewers of the Ateneo Central Bar Operations 2006 and from Doranne Lim’s reviewer for Justice Veloso’s Labor Law Review class. to immediately execute the reinstatement aspect of the labor arbiter’s decision. the employer cannot refuse to reinstate the illegally dismissed employee by claiming that the latter had already found a job elsewhere. service. 10. This depends on the stipulations in the CBA.LABOR LAW 1 dismissed or separated employee. until the employer continuously fails to actually implement the reinstatement aspect of the decision of the labor arbiter. or employment contract. and the retirement plan. 5-day Service incentive leave pay plus 4. just. RETIREMENT (as amended by the Retirement Pay Law – RA 7641) Exempted: retail. RA 8042 (local workers) (migrant workers) Reinstatement Full reimbursement of his placement fee with interest of 12% per annum Full backwages from the Salaries for the unexpired portion of his time his compensation employment contract or was withheld from him for 3 months for every up to the time of his year of the unexpired actual reinstatement term. an employee can get pay under the law. insofar as accrued backwages and other benefits are concerned. Thus. 3) x years of service If CBA / retirement plan has no prohibition. the illegally dismissed employee’s entitlement to backwages. Reliefs of local workers vs. If the contract is shorter. In the meantime. continues to accumulate. and other benefits subsists. 1/12 of the 13th month pay. It is only when the illegally dismissed employee receives the separation pay (in case of strained relations) that it could be claimed with certainty that the EER has formally ceased thereby precluding the possibility of reinstatement. ☺ RETIREMENT Ryan Quan 3C ’06-’07 15 . LC Sec. of the case titles are not accurate as they are the cases being randomly cited by Justice Veloso in class. Some. 15-day basic wage. 287. 279. company retirement plan. NLRC. CBA. If what is provided in the CBA is lower that what is provided for in law. if not most. Further. whichever is less * without valid.E. This is in no way complete. 25 August 1999) ART. Surely. Minimum wage earners are left with no choice after they are illegally dismissed from their employment. the employee is entitled to the higher amount. agricultural establishments operations employing not more than 10 employees Kinds OPTIONAL – 60 years old / 5 years in service (includes authorized absences/vacations/regular holidays/mandatory military or civic service). or authorized cause The option of “three months for every year” is available only if the employment is for at least one year. 2 + no. END OF MIDTERM REVIEWER This reviewer is based on the sequence of topics discussed by Justice Veloso in class. plus 3. VELOSO (Marsaman Manning Agency v. 13th month pay.
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