By: HOV

For LABOREM
18 May 2011

Contents
I.

Personnel
Classification
II. Employment Status
III. Statutory Benefits
IV. Security of Tenure
IV. Grounds for
Dismissal(LC & MRPS)
VI. Procedural and
Substantive Due Process

I.

Personnel Classification

A. ACADEMIC PERSONNEL
a. Teaching
School personnel who are formally engaged
in actual teaching service or in research
assignments, either on full-time or part-time

b. Non-Teaching
Personnel that posses certain prescribed
academic functions directly supportive of
teaching such as:

 Registrars
Librarians
Guidance counselors
Other similar persons
Industrial and job placement coordinators
Officials responsible for technical
education and skills development matters
MRPS, Section 4 (m) No. 4 (c); and TVET,
Section 4 (18), par. (c) (iii)

B. NON-ACADEMIC PERSONNEL
School
personnel
usually
engaged
in
administrative
functions who are not covered
under the definition of academic
personnel. They may include
school officials.
MRPS, Section 4 (m) No. 4 (d); and
TVET, Section 4 (18), par. (c) (iv)

III. Principal Law To Govern/Conflict of

Law Rules
a. For Academic Personnel

Principal - Education Laws

Supplementary - Labor Laws
HENCE, in case of conflict between the
provisions of Education Laws and Labor
Laws; the former shall prevail.

b. For Non-Academic Personnel

Principal - Labor Laws

Supplementary - Education Laws
HENCE, in case of conflict between the
mandate of Education Laws and Labor
Laws, the latter prevails.

LABOR CODE
& EDUCATION
LAWS/MRPS

I. Regular or Permanent Status

Section 93, MRPS
Regular or Permanent Status. - Those
who have served the probationary period
shall be made regular or permanent. Fulltime teachers who have satisfactorily
completed their probationary period shall
be considered regular or permanent.

A. Regular Employment of
Academic Personnel
Three (3) requisites for private schools
academic personnel to acquire permanent /
regular status
1) The teacher must be a full-time teacher;
2) The teacher must have completed the
probationary periods; and
3) Such service must have been
satisfactory

Who are full-time Academic

Personnel?

1) Full-time teaching or academic personnel are

those meeting all the following requirements:
i) Who possess at least the minimum
academic qualifications prescribed by the
DepEd, CHED and TESDA.
ii) Who are paid monthly or hourly, based on
the normal or regular teaching loads as
provided for in the policies, rules and
standards of the agency concerned.

iii) Whose regular working day of not more

than 8 hours a day is devoted to the
school; and
iv) Who are not teaching full-time in any
other educational institution.

All teaching or academic personnel who

do not meet the foregoing qualifications are
considered PART-TIME.

Lacuesta vs. Ateneo de Manila University

(G.R. No. 152777, Dec. 9, 2005)

The Manual of Regulations for Private

Schools and not the Labor Code, determines
whether or not a faculty member in an educational
institution has attained regular or permanent
status. Xxx

A part-time teacher cannot acquire

permanent status. Only when one has served
as a full-time teacher can he acquire
permanent or regular status. xxx Thus, the
three semesters she served as part-time
lecturer could not be credited to her in
computing the number of years she has
served to qualify her for permanent status.

Completing the probation period does not

automatically qualify her to become a
permanent employee of the university. xxx At
the end of the probation period, the decision
to re-hire an employee on probation, belongs
to the university as the employer alone.
CONCLUSION:
Permanent is not automatic upon completion of
the probationary period.

However, should the conditions to qualify as

permanent are present the school cannot
deprive such employee regular or permanent
status.

(H)owever, (the) probationary employees

enjoy security of tenure, but only within the
period of probation. Upon expiration of their
contract of employment, academic personnel
on probation cannot automatically claim
security of tenure and compel their
employers to renew their employment
contracts.

Probationary Employment for Academic

Personnel

For academic personnel in private schools, colleges

and universities, probationary employment is governed
by Section 92 of the 1992 Manual of Regulations for
Private Schools (Manual), which reads:

Section 92.
Probationary Period. Subject in all
instances to compliance with the Department and school
requirements, the probationary period for academic
personnel shall not be more than three (3) consecutive
years of satisfactory service for those in the elementary
and secondary levels, six (6) consecutive regular
semesters of satisfactory service for those in the tertiary
level, and nine (9) consecutive trimesters of satisfactory
service for those in the tertiary level where collegiate
courses are offered on a trimester basis.(MAGIS YOUNG ACHIEVERS
LEARNING CENTER and MRS. VIOLETA T. CARIO v. ADELAIDA . MANALO, G.R. No. 178835, February 13, 2009 )

B. Regular Employment of NonAcademic Personnel

Article 280 of the Labor Code
For an employee to be considered
regular, he must be engaged to perform
duties that are usually necessary or
desirable to the employers ordinary
course of business or trade.

II. Probationary Personnel

a. Probationary Employee
One who is on trial by the school
during which the institution
determines whether or not he is
qualified for regular employment.

b. Probationary Period
Probationary as used to describe
the period of employment implies
the purpose of the term or period,
but not its length.

Duration of Probationary Employment

(i) Academic Personnel (Section 92 of the
MRPS)
1) Formal Education
Basic Education 3 consecutive SY
Tertiary Education
-- 6 consecutive semesters
-- 9 consecutive semesters
2) Technical / Vocational
-- 2 consecutive school years
-- 4 consecutive semesters
-- 6 consecutive semesters

(ii) Non-Academic Personnel

Labor Code: Article 281
Probationary employment shall not
exceed six (6) months from the date the
employee started working x x x.
If PART-TIME x x x should become
regular status after working for the total
number of hours or days, respectively,
which completes a 6-month probationary
period of a worker in the same job under
normal circumstances.

III. Casual Employment

An employee who is engaged to
perform an activity not usually
necessary or desirable to the
course of business of the employer
is a casual employee.

However, should the performance of

activity not necessary or desirable in the
course of the business lasted for more than
a year, the said employment shall become

IV. Term/Fixed-Period Employment

In the case of Brent School, Inc. vs. Ronaldo
Zamora, et al. (181 SCRA 702), the Supreme
Court declared
x x x There is, on the other hand, the Civil
Code, which has always recognized, and
continues to recognize, the validity and
propriety of contracts and obligations with a
fixed or definite period and imposes no
restraints on the freedom of the parties to fix the
duration of a contract, whatever its object, x x x.

Under the Civil Code, therefore, and as a general

proposition, fixed-term employment contracts are not
limited, as they are under the present Labor Code, to
those by nature seasonal or for specific projects with
pre-determined dates of completion, they also include
those to which the parties by free choice have
assigned a specific date of termination.

x x x It should have no application to

instances where a fixed period of
employment was agreed upon knowingly
and voluntarily by the parties, without
any force, duress or improper pressure
being brought to bear upon the
employee and absent any other
circumstances initiating his consent, or
where it satisfactorily appears that the
employer and employee dealt with each
other on more or less equal terms with
no moral dominance whatever being
exercised by the former over the latter. x

AMA Computer College et al. vs. Austria

(G.R. No. 164078, Nov. 23, 2007)

(A)rticle 280 of the Labor Code does not

proscribe or prohibit an employment contract
with a fixed period. Even if the duties of the
employee consist of activities necessary or
desirable in the usual business of the
employer, the parties are free to agree on a
fixed period of time for the performance of
such activities.

The Handbook merely provides for two classes of

employees for purposes of permanency, i.e., Faculty and
Non-Academic. (T)he same does not specifically classify
the position of dean as part of the Faculty or of the NonAcademic personnel. At this juncture, we find solace in
the Manual of Regulations for Private Schools
Annotated, which provides that the college dean is the
senior officer responsible for the operation of an
academic program, the enforcement of rules and
regulations, and the supervision of faculty and student
services. xxx (H)e is considered a managerial employee.
Yet, a perusal of the Handbook yields the interpretation
that the provision on the permanency of Faculty
members applies to teachers only. But the Handbook or
school manual must yield to the decree of the Manual,
the latter having the character of law.

The specified probationary periods in

Section 92 of the Manual are the maximum
periods; under certain conditions, regular
status may be achieved by the employee in
less time. However, under the given
circumstances and the fact that the position of
dean in this case is for a fixed term, the issue
whether the respondent attained a regular
status is not in point. By the same token, the
application of the provision in the Manual as to
the required probationary period is misplaced.
It can be well said that a tenured status of
employment co-exists and is co-terminous
only with the definite term fixed in the contract
of employment.

Aklan College, Incorporated vs. Guarino

(G.R. No. 152949, Aug. 14, 2007)

An acting position is merely temporary, or one

which is good until another appointment is made to
take its place. One who holds a temporary
appointment has no fixed tenure of office, his
employment can be terminated anytime at the
pleasure of the appointing power without need to
show that it is for cause.
The fact that respondent was retained as an acting
dean for 17 years did not give him a vested right to
occupy in a permanent capacity the position to
which he was appointed.

The provisions of article 280 of the Labor Code are not

applicable to the present case especially with respect to
the issue of respondents acquisition of security of
tenure. It is settled that questions respecting a private
school teachers entitlement to security of tenure are
governed by the Manual Regulations for Private Schools
and not the Labor Code. Paragraph 75 of the 1970
Manual (now Section 93 of the 1992 Manual) lays down
the requisites before a teacher can be considered as
having attained a permanent status and therefore
entitlement to security of tenure.
A bona fide appointment in an acting capacity is
essentially temporary and revocable in character and
the holder of such appointment may be removed
anytime even without hearing or cause.

Yolanda M. Mercado, et al. v. AMA Computer College-Paraaque City, Inc. ,

G.R. No. 183572, April 13, 2010
The Manual of Regulations for Private School
probationary Employee

governs the

period of

At the end of this third year, the employer may now decide whether to
extend a permanent appointment to the employee, primarily on the basis of
the employee having met the reasonable standards of competence and
efficiency set by the employer. For the entire duration of this three-year
period, the teacher remains under probation. Upon the expiration of his
contract of employment, being simply on probation, he cannot
automatically claim security of tenure and compel the employer to renew
his employment contract.
If the school were to apply the probationary standards (as in fact it says it did in
the present case), these standards must not only be reasonable but must have
also been communicated to the teachers at the start of the probationary period,
or at the very least, at the start of the period when they were to be applied.
These terms, in addition to those expressly provided by the Labor Code, would
serve as the just cause for the termination of the probationary contract.

Conditions of Employment
Article 89 of the MRPS provides
Conditions of Employment. Every private
school shall promote the improvement of the
economic, social and professional status of all its
personnel.
In recognition of their special employment
status and their special role in the advancement of
knowledge, the employment of teaching and nonteaching academic personnel shall be governed by
such rules as may from time to time be promulgated
in coordination with one another by the Department
of Education, Culture and Sports and the
Department of Labor and Employment.

Conditions of employment of nonacademic

non-teaching
school
personnel, including compensation,
hours of work, security of tenure and
labor relations, shall be governed by
the appropriate labor laws and
regulations.

On Compensation
Section 90 of the MRPS provides
Every private school shall provide for a
compensation policy where compensation
ranges should be so graded taking into
account performance, merit and differences in
the qualifications and responsibilities of various
positions.

I. Holiday Pay
Article 94 of the Labor Code provides that
Right to Holiday Pay (a) Every
worker shall be paid his regular daily
wage during regular holidays, except
in retail and service establishments
regularly employing less than ten (10)
workers; x x x.

HOLIDAY PAY

REGULAR HOLIDAYS AND SPECIAL HOLIDAYS

THE 11 REGULAR HOLIDAYS ARE AS FOLLOWS:
1) NEW YEAR'S DAY (Jan 1)
2) Maundy Thursday (movable date)
3) Good Friday (movable date)
4) Araw ng Kagitingan (Bataan & Corregidor day
April 9)
5) Labor day (01 May)
6) Independence day (12 June)
7) National Heroes day (last Sunday of August)
8) Bonifacio day (30 November)
9) Christmas day (25 December)
10)Rizal day (30 December)
11) Feast of Ramadan (Eid Al Fitr, movable date)

Computation:

UNWORKED Regular Holidays- an employee is entitled

to at least his regular wage during a regular holiday if
he does not perform any work on such regular holiday

WORKED regular Holiday- an employee is entitled to at

least double his regular rate during a regular holiday if
he works on such regular holiday.
ILLUSTRATION: Reg. Holiday araw ng kagitingan
rate: P500.00
Unworked: P500.00 (100%)
worked:
P1,000.00 (200%)

OT rate of Regular Holiday: (200%) +30% rate for reg.

Holiday= 260%.
if an employee worked 10hrs on a reg. holiday
Illustration: rate/hr on a regular Day is 62.50 on reg.
Holiday is P125.00 (P1000/8 hrs)

DOUBLE HOLIDAY- A double holiday occurs when

two regular holidays fall on the same day, as for
example when Maundy Thursday of Good Friday
falls on Araw ng Kagitingan
UNWORKED double Holiday- an employee is
entitled to at least his regular wage for each
regular holiday during a double holiday. 200%
WORKED double holiday- An employee is entitled
to thrice his regular rate for work done on
double holiday
300%

II. Premium Pay

Article 93 of the Labor Code provides
Compensation for Rest Day, Sunday or
Holiday Work (a) Where an employee is
made or permitted to work on his scheduled
rest day, he shall be paid an additional
compensation of at least thirty percent (30%)
of his regular wage. An employee shall be
entitled to such additional compensation for
work performed on Sunday only when it is
his established rest day;

Rest day pay is equivalent to at least the

regular wage of the employee plus at least
thirty percent (30%) of the regular wage.
Hence, REST DAY PAY: RATE FOR REGULAR
DAY + 30 % OF THE REGULAR WAGE = 130%
Illustration: if EMPLOYEE'S rate per day is
P500.00, how much should EMPLOYEE be paid
for working 8 hours on a Sunday, assuming
that Sunday is his scheduled rest day?

For work done on a Sunday, EMPLOYEE is

entitled to:

P500.00 (rate per day)

+ P150.00 ( 30% of P500.00)
________________________________________

P650.00 (130% of rate per day

[P500.00x130%])

(b) When the nature of the work of

the employee is such that he has no
regular workdays and no regular rest
days can be scheduled, he shall be
paid an additional compensation of at
least thirty percent (30%) of his regular
wage for work performed on Sundays
and holidays;

(c) Work performed on any special

holiday shall be paid an additional
compensation of at least thirty percent
(30%) of the regular wage of the
employee. Where such holiday work
falls on the employees scheduled rest
day, he shall be entitled to an additional
compensation of at least fifty percent
(50%) of his regular wage.

III. Overtime Pay

Article 87 of the Labor Code provides that
Overtime Work Work may be performed
beyond eight (8) hours a day provided that the
employee is paid for the overtime work, an
additional compensation equivalent to his
regular wage plus at least twenty five percent
(25%) thereof. Work performed beyond eight
hours on a holiday or rest day shall be paid an
additional compensation equivalent to the rate
of the first eight hours on a holiday or rest day
plus at least thirty percent (30%) thereof.

OVERTIME PAY
Overtime pay is the additional compensation paid to
employees for each hour of work performed in excess of the
normal working hours of eight (8) hours a day.
OVERTIME PAY ON REGULAR WORKING DAY
Overtime pay on regular working day is equivalent to
at least the regular wage of the employee plus at least twentyfive percent (25%) of the regular wage.
Hence, OVERTIME PAY: RATE FOR REGULAR
WORKING DAY + 25% OF REGULAR WAGE = 125%
Illustration: if EMPLOYEE'S rate per day is P500.00, how
much should EMPLOYEE be paid on a regular working day
for work done from 8 a.m. To 7 p.m., with meal break from 12
nn. To 1 p.m.?

8 a.m. To 7 p.m. Is 11 hours less 1 hour non

compensable meal break = 10 hours.

Employee's rate per hour in a regular day is P62.50

(P500.00 divided by 8 hours)
For the overtime work done from 5 p.m. To 7 p.m.,
EMPLOYEE is entitled to:
P62.50 (rate per hour on a regular day)
+ P15.625 (25% of P62.50)
_____________________________________
P78.125 (125% rate per hour on a regular
day [P62.50 x 125%])
Hence, for work done from 8 a.m. To 7 p.m., employee
is entitled to:

P500.00 (8 a.m. To 5 p.m.[8 working hours])

+ P156.25 (P78.125[overtime pay hour]x2)
___________________________________________
P656.25

IV. Service Incentive Leave (SIL)

Article 95 of the LC provides
Right to Service Incentive Leave
(a) Every employee who has rendered at
least one year of service shall be entitled
to a yearly service incentive leave of five
days with pay.
(b) This provision shall not apply to
those who are already enjoying the benefit
herein provided; those enjoying vacation
leave with pay of at least five days. x x x.

V. 13th Month Pay

Presidential Decree No. 851, promulgated
on December 16, 1975 (as amended by
Memorandum Order No. 20, effective August
13, 1986), requires (schools) to pay their
employees a 13th month pay not later than
December 24 of every year regardless of the
amount of their salary, provided they have
worked for at least one month during the
calendar year.

Bonuses in Lieu of 13th Month Pay

In the case of National Federation of
Sugar Workers vs. Ovejera, the Supreme
Court en banc held that to require the
employer to give a second 13th month pay
would be to penalize him for his
munificence or liberality and to discourage
him from giving further voluntary grants.

The Supreme Court explained

The evident intention of the law (PD 851), as
revealed by the law itself, was to grant an
additional income in the form of a 13th month pay
to the employees not already receiving the same.
Otherwise put, the intention was to grant relief
not to all workersbut only to the unfortunate
ones not actually paid a 13th month salary or what
amounts to it, by whatever named called; but it
was not envisioned that a double burden would be
imposed on the employer already paying his
employees a 13th month pay or its equivalent. x x x.

This view is justified by the law

itself which makes no distinction in
the grant of exemption: Employers
already paying their employees a 13th
month pay or its equivalent are not
covered by this Decree. (PD 851)

VI. Maternity Benefit

Section 14-A of the Social Security Law provides
Maternity Leave Benefits A covered
female employee who has paid at least three
(3) monthly maternity contributions in the
twelfth-month period immediately preceding
the semester of her childbirth, abortion, or
miscarriage and who is currently employed
shall be paid a daily maternity benefit
equivalent to one hundred percent (100%) of
her average salary credit for sixty (60) days x
x x.

VII. Paternity Leave

Section 2 of Republic Act 8187 otherwise known
as the Paternity Leave Act of 1996 provides
x x x every married male employee in the
private and public sectors shall be entitled to a
paternity leave of seven (7) days with full pay
for the first four (4) deliveries of the legitimate
spouse with whom he is cohabiting. The male
employee applying for paternity leave shall
notify his employer of the pregnancy of his
legitimate spouse and the expected date of
such delivery.

VIII. Parental Leave

Under the Solo Parents Welfare Act of
2000 (Republic Act 8972), a solo parent
who has rendered service for at least one
(1) year, in addition to leave privileges
under existing laws, shall be entitled to a
parental leave benefit of not more than
seven (7) working days every year.

IX. Retirement Benefits

Article 287 of the Labor Code, as amended by
RA 7641, provides
Retirement Any employee may be retired upon
reaching the retirement age established in the
collective bargaining agreement or other applicable
employment contract.
In case of retirement, the employee shall be entitled
to receive such retirement benefits as he may have
earned under existing laws and any collective
bargaining agreement and other agreements: Provided
however, that an employees retirement benefits under
any collective bargaining and other agreements shall
not be less than those provided herein.

In the absence of a retirement plan or

agreement providing for retirement benefits of
employees in the establishment, an employee
upon reaching the age of sixty (60) years or
more, but not beyond sixty five (65) years which
is hereby declared the compulsory retirement
age, who has served at least five (5) years in
said establishment, may retire and shall be
entitled to retirement pay equivalent to at least
one-half (1/2) month salary for every year of
service, a fraction of at least six (6) months
being considered as one whole year.

Composition of One-Half Month Salary

x x x Unless the parties provide for
broader inclusions, the term one-half
month salary shall mean fifteen (15) days
plus one-twelfth (1/12) of the 13th month
pay and the cash equivalent of not more
than five (5) days of service incentive
leaves.

Retail,
services
and
agricultural
establishments or operations employing
not more than ten (10) employees or
workers are exempted from the coverage
of this provision.
Violation of this provision is hereby
declared unlawful and subject to the
penal provisions provided under Article
288 of this Code.

SSS Retirement Pay: Separate from Retirement

Pay Under the Labor Code
The employees entitlement to retirement
pay under Article 287 of the Labor Code or
under a unilaterally promulgated retirement
policy or plan of the employer or under a
Collective Bargaining Agreement, is
separate and distinct from the retirement
benefits granted under the Social Security
Law (Section 12-B).

Section 12-B. Retirement Benefits (a) A

covered employee who had paid at least one
hundred twenty monthly contributions prior to
the semester of retirement; and who (1)
reached the age of sixty years and is not
receiving a monthly compensation of at least
three hundred pesos, or (2) has reached the
age of sixty-five years, shall be entitled for as
long as he lives to the monthly pension; x x x.

Security of Tenure
-No employee/worker shall be dismissed from employment
except for just or authorized cause/s provided for by law
and after due process.
Due process of law Procedural refers to the method or manner by w/c
the law is enforced. It required a
hearing before it condemns and renders
judgment only after a fair hearing/trial
Substantive requires that the law itself not merely
procedures by w/c the law would be
enforced, is fair, reasonable and just.

STANDARDS OF DUE PROCESS

For Just Causes

a. Written notice served on employee specifying
grounds, rules violated and the corresponding
penalty/sanction for the infraction/offense
violated and giving him five (5) calendar days to
explain in writing his side from receipt of such
notice.
b. Hearing, with assistance of counsel if desired,
where employee is given the opportunity to
respond to the charge, present evidence or rebut
evidence presented against him.
c. Written notice of termination served on
employee indicating that grounds and all
circumstances have been considered/established
to justify termination. (King of Kings Trans. Vs
Claire Dela Fuente)

For Authorized Causes

a. Service of written notice to the employee and
appropriate DOLE Regional Office at least 30 days before
termination specifying the ground/s for termination.
b. If termination is brought about by completion of
the contract or phase thereof, no prior notice is required.
c. If termination is brought about by the failure of the
employee to meet the standards of the employer in the case
of probationary employment , it shall be sufficient that a
written notice is served the employee w/in a reasonable time
from the effective date of termination.

CAUSES OF
TERMINATING
EMPLOYMENT

JUST CAUSES in Terminating Employer-Employee Relationship (Article 282,Labor Code)

Serious Misconduct
a. Grave and aggravated in character and not merely trivial and
unimportant
b. Transgression of some established and definite rule of action,
a forbidden act, a dereliction of duty, willful in character, and
implies wrongful intent and not mere error in judgment
(Procter & Gamble Phil. vs. Edgardo Bondesto,G.R.
No.139847, Mar. 5, 2004)
c. In connection with the employees work
Cases:
Sexual harassment (Villarama vs. NLRC and Golden
Donuts Inc., G.R. No. 106341, Sept 2, 1994)
Uttering obscene, insulting or offensive words (Asian Design
Mfg. Corp. vs. Hon. Deputy Minister of Labor, G.R. No.
70552, May 12, 1986)

Willful Disobedience of Lawful Order

1.
2.
3.

Assailed conduct is willful or intentional,

characterized by wrongful or perverse attitude
Order violated is reasonable, lawful, sufficiently
made known to the employee and
In connection with the employees duties
(Dimabayao vs. NLRC, 303 SCRA 655; Westin Philippine Plaza
vs. NLRC, 306 SCRA 63);Procter & Gamble Phil vs. Edgardo
Bondesto, G.R. No.139847, Mar. 5, 2004)

Case:
a. Disobedience by a drug salesman or

medical representative to an order of

transfer (Abbot Laboratories vs. NLRC, G.R. No.
76959, Oct 12, 1987)

GROSS & HABITUAL NEGLECT OF DUTIES

Want or absence of or failure to exercise slight

care or diligence or the entire absence of care
Thoughtless disregard of consequences w/out
exerting effort to avoid them.
Habitual tardiness and absenteeism
Prolonged unauthorized absences
Abandonment of job constitutes gross neglect
- failure to report for work or absence w/out
valid or justifiable reason, and
- clear intention to sever the employeremployee relationship (the more determinative
factor and manifested by some overt acts)

FRAUD OR WILLFUL BREACH OF TRUST REPOSED BY

EMPLOYER

Act, omission, or concealment which involves

breach of legal duty, trust or confidence justly
reposed by employer
Committed against the employer in connection
with the employees work
Guidelines for loss of confidence
a. Loss of confidence not simulated
b. Not a subterfuge for improper, illegal or
unjustified causes
c. May not be asserted in the face of
overwhelming evidence to the contrary.

Guidelines on Loss of Confidence cont.

d. Must be genuine, not a mere afterthought to

4.

justify earlier action taken in bad faith; and

e. The employee involved holds a position of trust
and confidence
- Concorde Hotel vs. Court of Appeals, G.R. No.
144089, August 9, 2001/362 SCRA 583; Diamond
Motors Corp. vs. Court of Appeals, G.R.
No.151981, Dec. 1, 2003
Loss of confidence applies only to employees:
a. Occupying a position of trust and confidence; or
b. Routinely charged with the care and custody of
money or property
- Central Pangasinan Electric Coop, Inc vs.
Geronima Macaraeg & Maribeth De Veyra,
G.R.145800, Jan.22,2003; Vicente C. Ectuban
Jr. vs. Sulpicio Lines,Inc., G.R. No.148410, Jan.
17,2005.

COMMISSION OF A CRIME OR OFFENSE AGAINST THE PERSON OF

THE EMPLOYER, IMMEDIATE MEMBER OF HIS FAMILY OR DULY
AUTHORIZED REPRESENTATIVE

Immediate members of family limited to

spouse, ascendants, descendants, legitimate,
natural, adopted brothers or sisters, or relative
by affinity in the same degree or consanguinity
w/in the fourth civil degree
Conviction in a criminal case not necessary
ANALOGOUS CASES
* To be considered analogous to the just causes
enumerated, a cause must be due to voluntary
and/or willful act or omission of the employee

AUTHORIZED CAUSES FOR TERMINATION OF EMPLOYEREMPLOYEE RELATIONSHIP

(Art. 283, Labor
Code)

Installation of labor saving devices

Redundancy
Retrenchment
Closure or cessation of business operation not
due to serious business losses or financial
reverses
Closure or cessation of operation due to
serious business losses or financial reverses
Disease (Art. 284, Labor Code)

Article 285 of the Labor Code provides

Termination by employee. - (a) An

employee may terminate without just
cause
the
employee-employer
relationship by serving a written
notice on the employer at least one
(1) month in advance. The employer
upon whom no such notice was
served may hold the employee liable
for damages.

Section 94 of the MRPS states

In addition to the just causes
enumerated in the Labor Code, the
employment of school personnel, including
faculty, may be terminated for any of the
following causes: xxx

(a) Failure to Obtain Professional License

Sec. 27, RA 7836
No person shall practice x x x teaching
profession x x x without license.

PRC Resolution No. 600 s. 1997

Those who fail to register by
September 20, 2000 shall forfeit their
privilege to practice teaching x x x.

(b) Violation of Code of Ethics for

Professional Teachers
Article XII, Section 1--

Any violation x x x
shall
be
sufficient
ground for the x x x
revocation of x x x
license x x x

(c) Inefficiency and Incompetence in

the Performance of Duties
The employee who has consistently shown his
inability to efficiently perform his duties and
responsibilities, within a common performance
standards
Every teacher shall uphold
the highest possible standards
of quality education, shall
make the best preparation for
the career of teaching, and
shall be at his best at all times
in
the
practice
of
his
profession.

(d) Absences/Tardiness
to be considered valid
causes for termination
under Section 94 of
MRPS, Section 78 of
TVET Manual and
Article 283 of the Labor
Code, absences and
tardiness must be
habitual and
inexcusable.

(e) Abandonment (absence from work and deliberate

intent to discontinue to return)

Two (2) Requisites

(a) Absences without
authority
(b) Intention not
to return

f) Neglect of Duty
Neglect is defined as the failure to carry out an
expected or required action through carelessness or
by intention.
As a rule, Neglect of Duty, to be ground for
termination, must be both GROSS and HABITUAL.
Single or isolated acts of negligence do not
constitute just cause for dismissal
But if the negligent act results to substantial
loss/damage to property or injury to person,
habituality is NOT necessary to justify
dismissal

 Failure to Exercise Parental Responsibility

The school, its administrators and teachers,
or the individual, entity or institution engaged
in child care shall have special parental
authority and responsibility over the minor
child while under their supervision, instruction
or custody.
Authority and responsibility shall apply to all
authorized activities whether inside or outside
the premises of the school, entity or
institution.
Article 218, Family Code

A teacher shall recognize that

the interest and welfare of learners
are his first and foremost concern,
and shall handle each learner justly
and impartially.
(Article VII, Section 2)

 Unreasonable Delay to Submit Students Grades

A teacher should be held answerable for
failure to submit his/her students grades or
reports on performance on time in
accordance with the reasonable deadline
issued by the school administration. The
Education Act of 1982 mandates that teachers
shall
(r)ender
regular
reports
on
performance of each student and to the latter
and the latters parents or guardians with
specific suggestions for improvement.

 Neglect to Keep School Records

School Personnel do have the duty to
keep the school records of each of his
pupils/ students. This duty is based on the
pupils/students or their parents rights to
access to their own school records and the
issuance thereof (school records) at least
within thirty (30) days from request.

g) Immorality
School
employees,
particularly teachers and other
academic
personnel,
are
definitely bound by the rule
that immorality is a valid
cause for termination. For as
teachers, they serve as an
example to the pupils and the
students, especially during
their formative years.

Ogalisco vs. Holy Trinity College of General Santos

City, Inc. (G.R. No. 172913, Aug. 9, 2007)

xxx through xxx witnesses (was) proven that

complainant and Mrs. Hitalia were no ordinary
friends. They were seen holding hands at the
Manokan restaurant, seen walking in the street not in
a way ordinary friends do, seen many times at
Kimball Plaza having refreshment xxx acting like
husband and wife, holding hands while riding in the
tricycle, holding hands and complainant kissing Mrs.
Hitalia and putting his hands around her inside the
faculty room xxx.

RULING
(T)he factual findings of the labor arbiter
and the NLRC are accorded respect and finality
when supported by substantial evidence, which
means such evidence as that which a
reasonable mind might accept as adequate to
support a conclusion. xxx In this case, the labor
arbiter, NLRC, and CA unanimously found that
petitioner was validly dismissed. Petitioner,
however, failed to show any extraordinary
circumstance why this Court should disturb the
factual findings of the labor arbiter which were
affirmed by the NLRC and the CA. Hence,
petitioners termination is valid and legal under
Article 282 of the Labor Code.

h) Serious Misconduct
Misconduct is improper or wrong
conduct. It is the transgression of some
established and definite rule of action,
a forbidden act, a dereliction of duty,
willful in character, and implies
wrongful intent and not mere error in
judgment.

 Giving Failing Students Passing Grades They

Did Not Deserve
Section 79 of the MRPS provides
that the final grade or rating given to
a pupil or student in a subject should
be based solely on his scholastic
performance.

 Influencing a Co-Faculty to Change Grade

In the case of Wilfredo T. Padilla vs. NLRC and
San Beda College, the Supreme Court said
This Court is convinced that the pressure and
influence exerted by petitioner on his colleague to
change a failing grade to a passing one, as well as
his misrepresentation that Santos is his nephew,
constitute serious misconduct, which is a valid
ground for dismissing an employee.

However, in the case of NLRC, St. Jude Catholic

School, et al. vs. Bernadette Salgarino, (G.R. No.
164376, July 3, 2006)
To our mind, the acts of the respondent in increasing the
marks and indicating passing grades on the white sheets of
her students while she was on maternity leave; xxx of making
the increases in the grades of the students during her
maternity leave which is not allowed since the substitute
teachers were the ones authorized to compute and give the
grades for the concerned students; and of invoking
humanitarian consideration in doing so which is not a basis in
the Manual of Regulations for Private Schools for grading a
student, are all acts of transgression of school rules,
regulations and policies;

Truly, then, respondent had committed a

misconduct. However, such misconduct is
not serious enough to warrant her dismissal
from employment under paragraph (a) of
Article 282 of the Labor Code.

 Failure to Maintain Confidentiality of School

Records
The Education Act of 1982 provides
that the students shall have the right to
x x x the CONFIDENTIALITY of (their
school records) which the School shall
maintain and preserve.

Confidentiality covers only STRICTLY

confidential records
1) Personal records
2) Academic
records/ reports

4) Adoption papers
5) Medical/guidance
reports

3) Birth Certificates

6) Disciplinary records

Sale of Tickets; Collection of Contribution/

Donations from Pupils/Parents
BP 232, Sec. 9 (9) - students have right to
be free from (voluntary) involuntary
contributions
Improper or unauthorized solicitation
of contributions from subordinate
employees and by teachers or school
officials from school children

VIII, 5. A teacher shall not accept,

directly or indirectly, any
remuneration from tutorials other
than what is authorized for such
service.

 Contracting Loans from Students/Parents

With respect to the second, please be
informed that the Department considers the act
of teachers in x x x contracting loans from
parents of their students x x x not only a
serious misconduct based on Art. 282 (a) of the
Labor Code, but is likewise a violation of a
students right x x x to be free from involuntary
contribution x x x (Sec. 9 (9) of BP 232).
Justice Antonio E.B. Nachura

 Use of Corporal Punishment

Article 233 of the Family Code strictly
provides that in no case shall the
school administrators, teacher or
individual engaged in child care and
exercising special parental authority,
inflict corporal punishment upon the
child.

i) Willful Disobedience
The orders, regulations, or instructions of
the employer or representative must be:
1. Reasonable and lawful
2. Sufficiently known to the employee; and
3. In connection with the duties which the
employee has been engaged to
discharge

j) Loss of Trust and Confidence

Divine World College of San Jose vs. Aurelio

(G.R. No. 163706, March 29, 2007)

Article 282 of the Labor Code allows an employer to

terminate an employee for fraud or willful breach by
the employee of the trust xxx xxx (A)n employer
cannot be compelled to continue employing an
employee guilty of acts inimical to the interest of the
employer and justifying its loss of confidence in him.
Thus, loss of confidence is a valid ground for
dismissing an employee, provided that the loss of
confidence arises from particular given facts.

Termination of employment on this ground does

not require proof beyond reasonable doubt of the
employees misconduct. It is sufficient that there
is some basis for the loss of trust, or that
employer has reasonable ground to believe that
the employee is responsible for the misconduct
which renders him unworthy of the trust and
confidence demanded by his position. xxx In
order to constitute a just cause for dismissal, the
act complained of must be related to the
performance of the duties of the employee such
as would show him to be thereby unfit to continue
working for the employer. Moreover, xxx it must
be substantial and not arbitrary, and must be
founded on clearly established facts sufficient to
warrant the employees separation from work.

xxx Procuring a report without authority, then covertly

furnishing copies of the incompletes report to parties in
an attempt to unfairly discredit ones superiors, to our
mind, constituted serious breach of trust and
confidence. It was grossly inappropriate for respondent
to misrepresent herself in order to procure the external
auditors report. It was even worse to use the report
against college authorities who reposed on her their
confidence. Passing of the report as complete when it
was not, then falsely accusing ones superiors as
cheating their employees based on the report, is morally
reprehensible of the highest order. These highly
condemnable acts made by Aurelio as the Acting
Finance Officer shows her unfitness to continue working
with DWC management. xxx DWC, in this case, was
acting within its rights under the law to terminate the
services of Aurelio as the Acting Finance Officer of the
college.

Fungo vs. Lourdes School of Mandaluyong

(G.R. No. 152531)

To be a valid ground for dismissal, loss of trust

and confidence must be based on willful breach of
trust and founded on clearly established facts. A
breach is willful if it is done intentionally, knowingly
and purposely, without justifiable excuse, as
distinguished
from
an
act
done
carelessly,
thoughtlessly, heedlessly or inadvertedly. xxx (I)n order
to constitute a just cause for dismissal, the act
complained of must be work-related and shows that
the employee concerned is unfit to continue working
for the employer.

(T)he guidelines for application of loss of

confidence as a just cause for dismissing an employee
from the service (are)
a. loss of confidence must not be simulated;
b. it should not be used as a subterfuge for causes
which are improper, illegal or unjustified;
c. it may not be arbitrarily asserted in the face of
overwhelming evidence to the contrary;
d. it must be genuine, not a mere afterthought to
justify earlier action taken in bad faith.

However the following are not

misconduct of teacher that
justifies termination

Falling in love with student or co-teacher, not

grave misconduct.

In Chua-Qua vs. Clave, Supreme Court said

If the two eventually fell in love, despite the
disparity in their ages and academic levels,
this only leads substance to the truism that the
heart has reasons of its own which reasons
does not know xxx.

In the case of Michael John Z. Malto vs. People

of the Philippines, G.R. No. 164733, Sept. 21, 2007,

The Supreme Court in finding a College Professor

guilty of Child Abuse declared
Since all three elements of the crime were present, the
conviction of petitioner was proper.
Petitioner claims that AAA welcomed his kisses and
touches and consented to have sexual intercourse with
him. They engaged in these acts out of mutual love and
affection. But may the sweetheart theory be invoked
in cases of child prostitution and other sexual abuse
prosecuted under Section 5, Article III of RA 7610? No.

The sweetheart theory applies in acts of

lasciviousness and rape, xxx It operates on the
theory that the sexual act was consensual. It
requires proof that the accused and the victim were
lovers and that she consented to the sexual
relations.
For purposes of sexual intercourse and lascivious
conduct in child abuse cases under RA 7610, the
sweetheart defense is unacceptable. A child
exploited in prostitution or subjected to other
sexual abuse cannot validly give consent to sexual
intercourse with another person.

Tomas Claudio Memorial College, Inc. vs. CA,

(GR No. 152568 February 16,2004)

In this case, the Supreme Court struck down the
dismissal of a Liaison Officer of a school due to
his warrantless arrest for violation of the
Dangerous Drugs Act. It opined that while the
private respondent was detained in a criminal
case, the State Prosecutor found no probable
cause for his detention and resolved to dismiss
the case. Therefore, he has not yet been
convicted of the crime and the presumption of
innocence should work for his benefit.

The Case of Jenny Agabon and Virgilio

Agabon vs. NLRC (17 November 2004)
Where the dismissal is for a just cause, x x x,
the lack of statutory due process should not
nullify the dismissal, or render it illegal, or
ineffectual. However, the employer should
indemnify the employee for the violation of his
statutory rights, as ruled in Reta v. National Labor
Relations Commission. The indemnity to be
imposed should be stiffer to discourage the
abhorrent practice of "dismiss now, pay later,"
which we sought to deter in the Serrano ruling.

The sanction should be in the nature of

indemnification or penalty and should depend on
the facts of each case, taking into special
consideration the gravity of the due process
violation of the employer.

SUPREME COURT DOCTRINES

Cases
Wenphil 1989

Rulings

Sanctions

Dismissed due to
just/authorized cause w/o
notice and hearing is still
legal (Wenphil or Belated
Due Process Rule)

No reinstatement but
indemnity of P1,000 or
higher depending on facts of
case and gravity of omission

Serrano 2000

Dismissed due to
just/authorized cause w/o
notice and hearing, is
ineffectual

Agabon 2004

Dismissed due to just cause

but lack notice and hearing
should not nullify the
dismissal or render it illegal

Jaka Food-2005

Dismissed due to authorized

cause(retrenchment) but
Jaka failed to comply the
notice requirement

Full back wages from time of

termination till it is judicially
declared that dismissal was
for a just cause or
authorized cause. Plus
separation pay.
Nominal damage of P30,000

Nominal damages at
P50,000

When is there

CONSTRUCTIVE
DISMISSAL?

Duldulao vs. Court of Appeals

(G.R. No. 164893, March 1, 2007)

There is constructive dismissal if an act of clear
discrimination, insensibility, or disdain by an employer
becomes so unbearable on the part of the employee
that it would foreclose any choice by him except to
forego his continued employment.
At the onset, it must be stressed that petitioner has
no vested right to the position xxx that may operate to
deprive the respondent of its prerogative to change or
transfer her assignment to another department where
she will be most useful in its judgment.

xxx (T)o respondents belong the prerogative to

reassign petitioner to any of its departments as it sees
fit, provided such reassignment is made in good faith.
We have long recognized the prerogative of management
to transfer an employee from one office to another within
the same business establishment, as the exigency of the
business may require, provided that the transfer does
not result in demotion in rank or a diminution in salary,
benefits and other privileges of the employee; or is not
unreasonable, inconvenient or prejudicial to the latter; or
is not used as a subterfuge by the employer to rid
himself of an undesirable worker.

Reassignments made by management pending

investigation of irregularities allegedly committed by
an employee fall within the ambit of management
prerogative, and order of transfer prior to the
submission of the employees answer cannot be
deemed a violation of her right to due process.

The purpose of reassignments is no different from

that of preventive suspension which management
could validly impose as a measure of protection of
the companys property pending investigation of any
malfeasance or misfeasance committed by the
employee.

The (Baguio Colleges Foundation) system that is respondent

is more than a business venture, it is, first and foremost, an
educational institution, engaged in the noble task of teaching
and preparing our youth for the career paths they intend to
take. In the same way that an ordinary business cannot afford
to put at risk its resources while there is a pending complaint
or investigation against a possible erring employee,
respondent could not afford to have a discordant studentry,
and a college tainted with controvery. Surely, the harmony
and integrity of its faculty, staff and students are as important
as, if not more important than, any of the properties of
respondent.

Petitioner cannot claim constructive dismissal simply

because her transfer to another department was against her
wishes(.) xxx Mere incidental inconvenience is not enough to
warrant a claim of constructive dismissal.

-END-