You are on page 1of 16

0.5.

[G.R. No. 64948 September 27, 1994]


MANILA GOLF & COUNTRY CLUB, INC., petitioner, vs. INTERMEDIATE APPELLATE COURT
and FERMIN LLAMAR, respondents.
FACTS
A petition for certification was filed with the Labor Relations Division of the Ministry of Labor by PTCCEA in
behalf of the caddies of petitioners. The petition was resolved in favor of the caddies. The same union later filed
for SSS coverage but the Social Security Commission denied them for absence of employee employer
relationship.
ISSUE
Whether or not persons rendering caddying services for members of golf clubs and their guests in said clubs
courses or premises are the employees of such clubs and therefore within the compulsory coverage of the SSS.
HELD
The caddies are not employees for the following reasons:
-rules and regulations are permissible means to impose order where the caddies are allowed to pursue their
profession within the clubs premises
-they do not observe a particular working hour and are not at the call of the club
-the club has no measure of control over the incidents of the caddies work and compensation
-the group rotation system is only an assurance that the work is distributed fairly
Decision of the CA reversed and set aside.
1.
ANGELITO LAZARO, PROPRIETOR OF ROYAL STAR MARKETING VS. SOCIAL
SECURITY COMMISSION ROSALINA LAUDATO AND CA.
GR No. 138254, 30 July 2004
Principles of law: for the purposes of coverage under the Social Security Act, the determination of employeremployee relationship warrants the application of the control test, that is, whether the employer controls or
has reserved the right to control the employee, not only as to the result of the work done, but also as to the
means and methods by which the same is accomplished
Facts: Rosalina Laudato filed a case against 3 of her employers including Royal Star Marketing for
remittance of her unpaid monthly SSC contributions;
Despite her being a supervisor of sales agents for Royal Star Marketing, said company failed to report her to
SSC for compulsory coverage;
As a defense, Royal Star claims that Laudato was merely an agent paid on a commission basis and that she was
not subject to definite hours and conditions of work, hence, she is not even an employee of Royal Star;
Applying the control test, SSC ruled that Laudato was an employee of Royal Star, on the other hand, Royal
Star claims that they had no control over her activities and hence, she was not employee;
Issue: Is Laudato an employee considering that she does not have fixed hours of work?
What is the proper determination of employee-employer relationship for purposes of coverage under
Social Security Act?
Ruling: Yes. Citing Cosmopolitan Funeral Homes v. Maalat, this Court declared that there was an employeremployee relationship, noting that [the] supervisor, although compensated on commission basis, [is] exempt
from the observance of normal hours of work for his compensation is measured by the number of sales he
makes.
The proper determination is the control test. That is, whether the employer controls or has reserved the right
to control the employee, not only as to the result of the work done, but also as to the means and methods by
which the same is accomplished
2.

Odango vs NLRC (2005) G.R. 147420

Facts:
Petitioners are monthly-paid employees of ANTECO whose workdays are from Monday to Friday and half of
Saturday. After a routine inspection, the Regional Branch of the Department of Labor and Employment found
ANTECO liable for underpayment of the monthly salaries of its employees. On September 1989, the DOLE
directed ANTECO to pay its employees wage differentials amounting to P1,427,412.75. ANTECO failed to pay.

On various dates in 1995, thirty-three (33) monthly-paid employees filed complaints with the NLRC praying for
payment of wage differentials, damages and attorneys fees.
On November 1996, the Labor Arbiter rendered a Decision in favor of petitioners granting them wage
differentials amounting to P1,017,507.73 and attorneys fees of 10%. ANTECO appealed the Decision to the
NLRC where it reversed the Labor Arbiters Decision. The NLRC denied petitioners motion for
reconsideration. Petitioners then elevated the case to CA where it dismissed the petition for failure to comply
with Section 3, Rule 46 of the Rules of Court. The Court of Appeals explained that petitioners failed to allege
the specific instances where the NLRC abused its discretion. The appellate court denied petitioners motion for
reconsideration.
Issue: Whether or not the petitioners are entitled to money claims.
Held: Petitioners are not entitled to money claims or wage differentials.
The petitioners claim is based on Section 2, Rule IV, Book III of the Implementing Rules and Policy
Instructions No. 9 issued by the Secretary of Labor which was declared null and void since in the guise of
clarifying the Labor Codes provisions on holiday pay, they in effect amended them by enlarging the scope of
their exclusion.
Even assuming that Section 2, Rule IV of Book III is valid, their claim will still fail. The basic rule in this
jurisdiction is "no work, no pay." The right to be paid for un-worked days is generally limited to the ten legal
holidays in a year. Petitioners claim is based on a mistaken notion that Section 2, Rule IV of Book III gave rise
to a right to be paid for un-worked days beyond the ten legal holidays. Petitioners line of reasoning is not only
a violation of the "no work, no pay" principle, it also gives rise to an invidious classification, a violation of the
equal protection clause.

3.

Asuncion vs NLRC
362 SCRA 56

Fatcs:
Petitioner Asuncion, upon her disclosure to routine inspection made by NCR-IRDD of DOLE for
violatins of the company to the Labor Standards, was dismissed by respondent Juco (companys director) on the
grounds of disobedience to lawful orders and for failure to submit a reply after petitioner was charged by Juco
with chronic absenteeism, habitual tardiness, wasting of companys time and etc.
Petitioner filed a case for illegal termination in which the Labor Arbiter rendered judgment in her favor
but NLRC reversed such judgment. She then appealed to Supreme Court under Rule 65.
Issue:
Whether or not petitioner is illegaly terminated.
Ruling:
Respondent Jucos unexplained and unjustified non-presentation of the record book which is the best
evidence of the charges against petitioner casts serious doubts on his charges of absenteeism and tardiness
against petitioner.
Petitioner was not given an ample oppurtunity by respondent to answer the charges leveled against her.
The serious doubts in the evidence on record as to the factual basis of the charges against petitioner
shall be resolved in her favor in line with the policy of the Labor Code to afford protection and construe doubts
in favor of labor.
Petition affirmed and petitioner is entitled to reinstatement.
4.
[G.R. No. 157214. June 7, 2005]
PHILIPPINE GLOBAL COMMUNICATIONS, INC., petitioner, vs. RICARDO DE VERA, respondent.
FACTS
De Vera and Philippine Global Communications, Inc. entered into a contract where respondent was to attend to
the medical needs of petitioners employees while being paid a retainer fee of P4,000 per month. Later, De Vera
was informed by the petitioner that the retainership will be discontinued. Respondent filed a case for illegal
dismissal.
ISSUE

Whether or not de Vera is an employee of PhilComm or an independent contractor.

HELD
Applying the four fold test, de Vera is not an employee. There are several indicators apart from the fact that the
power to terminate the arrangement lay on both parties:

from the time he started to work with petitioner, he never was included in its payroll; was never
deducted any contribution for remittance to the Social Security System (SSS);

he was subjected by petitioner to the ten (10%) percent withholding tax for his professional fee, in
accordance with the National Internal Revenue Code, matters which are simply inconsistent with an employeremployee relationship;

the records are replete with evidence showing that respondent had to bill petitioner for his monthly
professional fees. It simply runs against the grain of common experience to imagine that an ordinary employee
has yet to bill his employer to receive his salary.
Finally, the element of control s absent.
Petition granted.
5.

Samahan ng mga Mangagawa sa SAMMA-LAKAS sa Industriya ng Kapatirang Haligi ng


Alyansa (SAMMA-LIKHA) v. SAMMA Corporation
G.R. No. 167141, March 13, 2009

Facts :
Petitioner, SAMMA-LIKHA, filed a petition for certification election in DOLE. Respondent moved for
the dismissal of the petition. In an Order of Med-Arbiter, the petition was dismissed on the ground of (i) lack
of legal personality; (ii) prohibited mixture of rank-and-file and supervisory employees; and (iii) failure to
submit a certificate of non-forum shopping.
Petitioner moved for a motion for reconsideration.
Meanwhile, respondent filed a petition for
cancellation of petitioner registration. The Secretary of Labor, treating petitioners MR as an appeal, rendered
a decision reversing the order of the med-arbiter.
Meanwhile, the DOLE revoked the charter certificate of petitioners local chapter. Respondent filed a
petition for certiorari before the CA which reversed the decision of Secretary of Labor. Hence, this petition
was filed by petitioner.
Issue:
Whether petitioner had the legal personality to file the petition for certification election.
Ruling:
Respondent, as employer, had been the one opposing the holding of a certification election among its
rank-and-file employees. This should not be the case. We have already declared that, in certification elections,
the employer is a bystander; it has no right or material interest to assail the certification election.
The petition is granted. The record of the case is remanded to the office of origin for determination of
the status of petitioners legal personality.
6.

National Union of Workers in Hotels, Restaurants and Allied Industries Manila Pavilion Hotel
Chapter v. Secretary of Labor
G.R. No. 181531, July 31, 2009

Facts:
A certification election was conducted on June 2006 among the rank-and-file employees of Holiday Inn.
Petitioner and another union (HIMPHLU) refer the case back to Med Arbiter to decide which among those
votes be opened and tallied. 22 votes were segregated because; (1) eleven were cast by dismissed employees,
albeit the legality of their dismissal is still pending before CA, (2) six were cast by those already occupying
supervisory positions; and (3) five were cast by probationary employees, and pursuant to the CBA, such
employees cannot vote.

The Med Arbiter ruled to open the votes cast by dismissed and by those holding supervisory employees.
The union appealed to SOLE, arguing that the vote of probationary employees should likewise be opened and
tallied. The SOLE affirmed the decision of Med Arbiter. On appeal, CA affirmed the ruling of SOLE. Hence,
this petition.
Issue:
Whether employees on probationary status at the time of the certification election should be allowed to
vote.
Ruling:
The court ruled in affirmative. The inclusion of Gatbontons vote was proper not because it was not
questioned but because probationary employees have the right to vote in a certification election. The votes of
the six other probationary employees should thus also have been counted. As Airtime Specialists, Inc. v. FErrerColleja, 180 SCRA 749, holds: In a certification election, all rank and file employees in the appropriate
bargaining unit, whether probationary or permanent are entitled to vote.
Petition is granted. The decision of CA is annulled and set aside
7.

Sta. Lucia East Commercial Corporation v. Secretary of Labor


G.R. No. 162355, August 14, 2009

Facts:
On February 2001, Confederated Labor Union of the Philippines (CLUP), instituted a petition for
certification election among the regular rank-and-file employees of petitioner and its affiliates. The Med
Arbiter ordered the dismissal of the petition due to inappropriateness of the bargaining unit. In the meantime,
CLUP-Sta. Lucia, reorganized itself and re-registered itself as CLUP-SLECCAWA and filed a petition.
The company filed a motion to dismiss and averred that its recognized the CLUP- Sta. Lucia and as the
exclusive bargaining agent of its regular rank-and-file employees and that the collective bargaining negotiation
already commenced. On November 2001, a CBA was ratified between the company and the CLUP-Sta. Lucia.
CLUP-SLECCAWA opposed the execution of CBA as the same is tainted with malice, collusion and conspiracy.
Med Arbiter dismissed CLUP-SLECCAWAs petition for direct certification on the ground of contract bar rule.
On appeal, SOLE reversed and set aside Med Arbiters decision. The company filed a petition before the CA,
the CA affirmed the ruling of SOLE. Hence, this petition.
Issue:
Wether the CA erred in affirming the SOLE decision.
Ruling:
The petition has no merit. The inclusion in the union of disqualified employees is not among the
grounds for cancellation of registration, unless such inclusion is due to misrepresentation, false statement or
fraud under the circumstances enumerated in Sections (a) to (c ) of Article 239 of the Labor Code. Thus,
CLUP-Sta. Lucia and its Affiliates Workers Union, having been validly issued a certificate of registration,
should be considered as having acquired juridical personality which may not be attacked collaterally. The
proper procedure for the company is to file a petition for cancellation of certificate of registration and not to
immediately commence voluntary recognition proceedings.
The petition is denied.
8.

Oldarico Traveo v. Bobongon Banana Growers Multi-Purpose Cooperative


G.R. No. 164205, September 3, 2009

Facts:
Petitioner was hired by TACOR and DFI to work at a banana plantation in Davao Del Norte.
Petitioner asseverated that while they worked under the direct supervision of TACOR and DFI, these companies
used different schemes to make it appear that petitioner were hired through independent contractors, that they
are required to join cooperative and be member of the respondent.

Sometime in 2000, the respondent began utilizing harassment tactics to ease them out of their jobs.
Without seeking approval from DOLE, they changed the compensation package to pakyawan rate. One after
another, three (3) separate complaints for illegal dismissal were filed by petitioners with the NLRC against
respondent including TACOR and DFI. In a consolidated decision, LA found respondent guilty of illegal
dismissal. On partial appeal, petitioner questioned the LA denial of their money claims and dropping their
complaints against TACOR and DFI. The NLRC sustained the decision of the LA. On appeal, CA dismissed
petition on the ground that the verification and certification for forum shopping is defective. Hence, this
petition.
Issue:
Whether DFI wich TACOR had been merged and DPI should be held solidarily liable with the
Cooperative for petitioners illegal dismissal and money claims.
Ruling:
To be sure, the matter of whether the Cooperative is an independent contractor or a labor-only contractor
may not be used to predicate a ruling in this case. Job contracting or subcontracting refers to an arrangement
whereby a principal agrees to farm out with a contractor or subcontractor the performance of a specific job,
work or service within a definite or predetermined period, regardless of whether such job, work or service is to
be performed or completed within or outside .the premises of the principal. The present case does not involve
such an agreement.
There being no employer-employee relationship between petitioners and the Cooperatives corespondents, the latter are not solidarily liable with the Cooperative for petitioners illegal dismissal and money
claims.
The petition is dimissed.
9.
[G.R. No. 110524 July 29, 2002]
DOUGLAS MILLARES and ROGELIO LAGDA, petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION, TRANS-GLOBAL MARITIME AGENCY, INC. and ESSO INTERNATIONAL
SHIPPING CO., LTD. respondents.
FACTS
Petitioners were employed by Esso through its local manning agency, Trans-Global. Both petitioners
individually wrote Esso of their respective intention to avail of the optional retirement plan under the
Consecutive Enlistment Incentive Plan (CEIP). However, their requests were denied by Esso on the following
grounds, to wit: (1) he was employed on a contractual basis; (2) his contract of enlistment (COE) did not
provide for retirement before the age of sixty (60) years; and (3) he did not comply with the requirement for
claiming benefits under the CEIP, i.e., to submit a written advice to the company of his intention to terminate
his employment within thirty (30) days from his last disembarkation date. Millares filed a leave of absence, but
was later informed that another person was promoted to his position because of his extended absence without
leave. This AWOL was equated by Esso as abandonment of his position and was he was subsequently dropped
from the roster of crew members. The same this happened to petitioner Lagda.
Petitioners Millares and Lagda then filed a complaint-affidavit for illegal dismissal and non-payment of
employee benefits against private respondents Esso International and Trans-Global, before the POEA.
ISSUE
Whether or not petitioners are contractual employees whose contractual employments are terminated every time
their contracts of employment expire.
HELD
The SC held that seafarers are not regular employees. They are considered contractual employees. They cannot
be considered as regular employees under article 280 of the Labor Code. Their employment is governed by the
contracts they sign every time they are rehired and their employment is terminated when the contact expires.
Their employment is contractually fixed for a certain period of time. They fall under the exception of article 280
whose employment has been fixed for a specific project/undertaking the completion of which has been
determined at the time of engagement of the employee or where the work/services to be performed is seasonal
in nature and the employment is for the duration of the season.
Petition is partly granted.

10.

Philippines Transmarine Carriers (PTC) v. Carella


525 SCRA 586

Facts:
Felicisimo Carella was hired by PTC, a manning agent, in behalf of its principal Anglo-Eastern Ship
Mngt., Ltd. to work as master on board MV handy cam azobe for 12 months.
They approved the POEA
contract, they would get US$170,000.00 as basic monthly pay, fixed monthly overtime as US$765.00, master
allowance of US$170.00 and leave with pay of six (6) days per month or US$340.00 or a total of US$2,975.00 a
month.
While the vessel was in Bombay, India, Carella was dismissed and repatriated to the Philippines. On
August 1995, he field with DOLE the illegal dismissal with claims for salaries and other benefits for the
unexpired portion of its contract as well as unremitted allotments and damages. He alleged that he was
dismissed without notice and hearing and without valid reason.
Issue:
Whether Carellas dismissal is illegal.
Ruling:
No it was not. According to the SC, CArellas overtime and leave pays should not be included in the
computation of the unexpired portion since he was no longer rendering services during that period of time, as he
had already been repatiated. Overtime pay is granted only if the worker actually rendered service in excess of
the number of his regular work hours. It was incorrect to include that even without sufficient evidence of
actual rendition of overtime work, Carella would automatically be entitled to overtime pay. As regards, leave
pay, the Court stated that the claim for days leave pay for the unexpired portion of the contract was unwarranted
since the same was given during the actual service of the seaman. Hence, the Court partially granted the
petition and ordered that the award for overtime pay and leave be deducted from the total monetary award of the
LA.
11.
PILTEL v. PILTEA
525 SCRA 361
Facts:
The CBA between PILTEA and PILTEL, was due to expire on December 1997. On October 1997, the
union submitted to the company its proposal for the renegotiation of the non-representation aspects of their
CBA. As there was a standstill on several issues, the parties submitted their dispute to the NCMB, for
preventive mediation. The conciliation proceedings before the NCMB failed.
On July 1998, the union filed a notice of strike with NCMB for ULP due to the alleged acts of restraint
& coercion of union members & interference with their right to self-organization committed by the companys
managers. The company filed a petition for consolidated assumption of jurisdiction with the office of the Sec.
of Labor on August 1998 and the assumption order was issued. On September 1998, the union filed a second
notice of strike with the NCMB.
On September 1998, the Secretary directed the striking union officers & members to return to work
within 24 hours where the union complied. On December 1998, the company filed with the NLRC a petition to
declare the union strike illegal. The LA issued a decision declaring the strike as illegal. The NLRC affirmed
the decision of the LA. The CA reduced the penalty of the union from dismissal to suspension of 6 months.
Issue:
Whether the strike was valid.
Ruling:
The strikes was illegal for the following reasons: (i) the union staged the strike on the same day that it
filed its 2nd notice of strike and thus violated the 7-day strike ban. This requirement should be observed to give

the DOLE an opportunity to verify whether the projected strike really carried the approval of the majority of the
union members.
12.

Jackbilt Industries, Inc. v. Jackbilt Employees Workers Union-NAFLU-KMU


G.R. Nos. 171618-19, March 13, 2009

Facts:
Due to economic crisis on construction industry, petitioner decided to temporarily stop its business of
producing concrete hollow blocks compelling most of its employees to go on leave for six months. Respondent
protested the temporary shutdown and later on went on strike.
Petitioner filed a petition for injunction with prayer for the issuance of TRO in NLRC which NLRC
issued. Reports of both the implementing officers and Labor Arbiter revealed that respondent violated the
TRO. Respondent wrote letters to respondent participated in strike to explain why they should not be dismissed
for committing illegal acts in the course of a strike. Failure of respondent to comply despite the extensions
granted, petitioner dismissed the concerned employees.
Hence, respondent filed a complaint for illegal lockout, runaway shop and damages. In its decision, LA
dismissed the complaint for lack of merit. However, because the petition did not declare the strike illegal
before terminating some employees, the company is found guilty of illegal dismissal.
On appeal, the NLRC modified the decision of LA and held that petitioner should be held liable for
monetary awards granted to respondent. Petitioner appeal before the CA. The CA dismissed the petition but
modified the NLRC decision and held that the temporary shutdown was moved by anti-union sentiments.
Petitioner was guilty therefore of unfair labor practice.
Issue:
Whether the filing of a petition with the LA to declare a strike illegal is a condition sine qua non for the
valid termination of employees who commit an illegal act in the course of strike.
Ruling:
The use of unlawful means in the course of a strike renders such strike illegal. Therefore, pursuant to
the principle of conclusiveness of judgment, the March 9, 1998 strike was ipso facto illegal. The filing of a
petition to declare the strike illegal was thus unnecessary.
Consequently, we uphold the legality of the dismissal of respondent. Article 264 of the Labor Code
further provides that an employer may terminate employees found to have committed illegal acts in the course
of a strike. Petitioner clearly had the legal right to terminate respondent.
The petitioner is granted.
13.
ARELLANO UNIVERSITY EMPLOYEES AND WORKERS UNION, et al. v. COURT
OF APPEALS, et al. 502 SCRA 219 (2006), THIRD DIVISION (Carpio Morales, J.)
An ordinary striking worker may not be declared to have lost his employment status by mere participation in an
illegal strike.
The Arellano University Employees and Workers Union (the Union), the exclusive bargaining representative of
about 380 rank-and-file employees of Arellano University, Inc. (the University), filed with the National
Conciliation and Mediation Board (NCMB) a Notice of Strike charging the University with Unfair Labor
Practice (ULP). After several controversies and petitions, a strike was staged.
Upon the lifting of the strike, the University filed a Petition to Declare the Strike Illegal before the National
Labor Relations Commission (NLRC). The NLRC issued a Resolution holding that the University was not
guilty of ULP. Consequently, the strike was declared illegal. All the employees who participated in the illegal
strike were thereafter declared to have lost their employment status.
ISSUE:
Whether or not an employee is deemed to have lost his employment by mere participation in an illegal strike
HELD:
Under Article 264 of the Labor Code, an ordinary striking worker may not be declared to have lost his
employment status by mere participation in an illegal strike. There must be proof that he knowingly participated
in the commission of illegal acts during the strike. While the University adduced photographs showing strikers

picketing outside the university premises, it failed to identify who they were. It thus failed to meet the
substantiality of evidence test applicable in dismissal cases.
With respect to the union officers, as already discussed, their mere participation in the illegal strike warrants
their dismissal.
14.
BACOLOD-TALISAY REALTY AND DEVELOPMENT CORPORATION, et al. v. ROMEO
DELA CRUZ 587 SCRA 304 (2009), SECOND DIVISION (Carpio Morales, J.)
The twin notice requirement provided by law should be observed in order for a dismissal to be valid.
Romeo dela Cruz (respondent) is an employee of Bacolod-Talisay Realty Development Corporation (BacolodTalisay) as an overseer. He was suspended for 30 days for payroll paddling, selling cane points without the
knowledge and consent of management and misappropriating the proceeds thereof, and renting out tractor for
use in another farm. After 30 days, he received a letter informing him that he was dismissed from his work.
Respondent dela Cruz and Bacolod-Talisay had a confrontation before the barangay council but they did not
reach any settlement. A case for illegal dismissal was filed by dela Cruz, and it was dismissed by the Labor
Arbiter as well as the NLRC. On the other hand, the Court of Appeals reversed the decision of the NLRC
finding that the Bacolor-Dalisay did not comply with the guidelines for the dismissal of an employee.
ISSUE:
Whether or not petitioner, Bacolod-Talisay observed due process in dismissing Romeo dela Cruz
HELD:
The Court of Appeals correctly held though that Bacolod-Talisay did not comply with the proper procedure in
dismissing respondent. In other words, Bacolod-Talisay failed to afford dela Cruz due process by failing to
comply with the twin notice requirement in dismissing him, viz: 1) a first notice to apprise him of his fault, and
2) a second notice to him that his employment is being terminated.
The letter dated June 3, 1997 sent to dela Cruz was a letter of suspension. It did not comply with the required
first notice, the purpose of which is to apprise the employee of the cause for termination and to give him
reasonable opportunity to explain his side.
In fine, while the dismissal of dela Cruz was for a just cause, the procedure in effecting the same was not
observed.
15.
LUNESA O. LANSANGAN AND ROCITA CENDAA v. AMKOR TECHNOLOGY
PHILIPPINES
577 SCRA 493 (2009), SECOND DIVISION (Carpio Morales, J.)
Payment of backwages and other benefits is justified only if the employee was unjustly dismissed.
An email was sent to Amkor Technology Philippines (Amkor) through their General Manager alleging that the
Lunesa Lansangan (Lansangan) and Rocita Cendana (Cendana) stole company time. Lansangan and Cendana
admitted to the wrongdoing and were terminated for extremely serious offenses . The two then filed a case of
illegal dismissal against Amkor. The Labor Arbiter (LA) ordered for their reinstatement to their former positions
without backwages, but dismissed the complaint on basis of Lansangan and Cendanas guilt. The two did not
appeal the finding that they were guilty, and moved for the writ of execution. Amkor appealed the decision to
the National Labor Relations Commissions (NLRC) and was subsequently granted. The NLRC deleted the grant
for reinstatement of the LA.
The Court of Appeals affirmed the decision of the NLRC that Lansangan and Cendana are guilty and should not
be reinstated but modified in so far as backwages are concerned that it must be paid in full.
ISSUE:
Whether or not Lansangan and Cendana are entitled to backwages and reinstatement
HELD:
The Arbiter found Lansangan and Cendanas dismissal to be valid. Such finding had, as stated earlier, become
final, they not having appealed it. Lansangan and Cendanas are not entitled to full backwages as their dismissal
was not found to be illegal. Agabon v. NLRC so states payment of backwages and other benefits is justified
only if the employee was unjustly dismissed.

16.
BILFLEX PHIL. INC. LABOR UNION et al. v. FILFLEX
MANUFACTURING CORPORATION AND BILFLEX (PHILS.), INC.
511 SCRA 247 (2006), THIRD DIVISION (Carpio Morales, J.) G.R. No. 155679

INDUSTRIAL AND
December 19, 2006

Any union officer who knowingly participates in an illegal strike and any worker or union who knowingly
participates in the commission of illegal acts during a strike may be declared to have lost his employment
status.
Biflex Philippines Inc. Labor Union and Filflex Industrial and Manufacturing Labor Union are the respective
collective bargaining agents of the employees of the sister companies Biflex and Filflex which are engaged in
the garment business. They are situated in one big compound and they have a common entrance.
On October 24, 1990, the labor sector staged a welga ng bayan to protest against oil price hike; the unions
staged a work stoppage which lasted for several days, prompting the companies to file a petition to declare the
work stoppage illegal for failure to comply with procedural requirements.
The Labor Arbiter held that the strike is illegal and declared the officers of the union to have lost their
employment status.
ISSUE:
Whether or not the staged strike is illegal and a ground for the lost of employment status of the union officers
HELD:
Article 264 (a) of the Labor Code states that any union officer who knowingly participates in an illegal strike
and any worker or union who knowingly participates in the commission of illegal acts during a strike may be
declared to have lost his employment status.
Thus, a union officer may be declared to have lost his employment status if he knowingly participates in an
illegal strike and in this case, the strike is declared illegal by the court because the means employed by the
union are illegal.
Here, the unions blocked the egress and ingress of the company premises thus, a violation of Article 264 (e) of
the Labor Code which would affect the strike as illegal even if assuming arguendo that the unions had complied
with legal formalities and thus, the termination of the employees was valid.
The court said that the legality of a strike is determined not only by compliance with its legal formalities but
also by means by which it is carried out.

17. G.R. No. L-66890... 160 SCRA 568


April 15, 1988
HERMINIO FLORES and HERMINIA FLORES, petitioners,
vs.
FUNERARIA NUESTRO and /or FORTUNATO NUESTRO and the NATIONAL LABOR RELATIONS
COMMISSION, respondents.
FACTS
1.The petitioner, Herminio Flores and his wife, worked for respondent, FortunatoNuestro in his funeral
parlor since June 1976 as helper-utility man and as book keeper and cahier respectively.
2.2.On October 7, 1980, respondent registered the petitioner spouses with the SSS, as his employee.
Thereafter, the spouses received an increase in their respectivesalaries.\
3..On October 30, 1982, Herminio and Nuestro had an altercation, during which thelatter physically
assaulted the former.
4.4.Herminio then filed a complaint for physical injuries against Nuestro.
5.5.As a result of the incident, the Flores family had to leave their quarters at the funeralparlor and seek
protection from the Pilar, Bataan Police.

6.6.Thereafter, petitioners filed illegal dismissal charges against respondent. On the partof the
respondent, he denied the existence of employer-employee relationship, andfurther alleged that
petitioners were the ones to voluntarily abandon their work
ISSUE
Was there an employee-employer relationship in this case?
HELD
YES. There was an employee-employer relationship. That the respondent registered thepetitioners with the
Social Security System is proof that they were indeed his employees.The coverage of the Social Security
Law is predicated on the existence of an employer-employee relationship.

CASTOR-GARUPA v. ECC, 487 SCRA 171

FACTS: Petitioner is resident physician in a hospital in Negros Oriental, who was diagnosed of a
kidney disease. After having her kidney transplant, she filed a work-related sickness compensation
claim with the respondent ECC through the GSIS, which denied the same, arguing that the disease
she contracted is not listed among the occupational diseases determined by them to be compensable
as work-related sickness. Petitioner appealed contending that the bacteria causing the disease was
contracted while being employed in the hospital since symptoms have already manifested since
1994, and relying upon the theory that her employment poses an increased risk in contracting the
diseases.

ISSUE: Is the contention of the petitioner correct?

HELD: Yes. In determining whether an injury or sickness is work-related or not, what the law requires
is reasonable work connection, not a direct causal connection. It is observed that the WCL has not
ceased to be a social legislation, hence liberality of the law in the form of the workingman or woman
still prevails.
BULLETIN PUBLISHING CORP. v. SANCHEZ, 144 SCRA 628

FACTS: Supervisors and managers in petitioner company formed a union separate from that of the
rank-and-file union, petitioned for certification election, and staged a strike against the petitioner,
prompting the latter to seek a permanent injunction.

ISSUE: Are supervisors or managers allowed by law to form a union?

HELD: No. The supervisory employees of petitioner firm may not, under the law, form a supervisors
union, separate and distinct from the existing bargaining unit (BEU), composed of the rank-and-file
employees of the Bulletin Publishing Corporation. It is evident that most of the private respondents
are considered managerial employees. xxx The rationale for this inhibition has been stated to be,
because if these managerial employees would belong to or be affiliated with a Union, the latter might
not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also
become company- dominated with the presence of managerial employees in Union membership.

PASEI v DRILON, 163 SCRA 386

FACTS: The Department of Labor and Employment issued an order suspending the deployment of
Filipino domestic and household workers, in view of the heightened abuses committed against OFWs
abroad. The petitioner, a local recruitment agency, petitioned for the invalidation of such order for
alleged violation of equal protection clause.

ISSUE: Is the deployment ban a valid exercise of police power? What is police power?

HELD: Yes, the deployment ban of domestic helpers is a valid exercise of police power. Police Power is
the inherent power of the State to enact legislation that may interfere with personal liberty and
property in order to promote the general welfare.

GARCIA v. PAL, GR 164856, Jan. 20, 2009


FACTS: PAL filed an administrative case against Garcia and Dumago after they were allegedly caught
sniffing shabu at the PAL Tool Room. After due notice, they were dismissed for transgressing the PAL
Code of Discipline. The petitioners filed a complaint for illegal dismissal. The Labor Arbiter decided in
favor of petitioners with an immediate reinstatement. A writ was issued to such effect pending appeal
with the NLRC.
ISSUE: Can the petitioners collect wages on the period of appeal from the Labor Arbiters order up to
the final decision of the higher court?
HELD: Yes. The State forcefully and meaningfully underscore labor as a primary social and economic
force. In short, with respect to decisions reinstating employees, the law itself has determined a
sufficiently overwhelming reason for its execution pending appeal. Therefore, the petitioners can
collect wages from the period of the execution of the decision of the labor arbiter to the time of the
final decision of the higher court.

CHUAYUCO STEEL MANUFACTURING CORPORATION AND/OR EDWIN CHUA v.


BUKLOD NG MANGGAGAWA SA CHUAYUCO STEEL MANUFACTURING CORPORATION
513 SCRA 621 (2007), SECOND DIVISION, (Carpio Morales, J.)
A union officer who knowingly participates in an illegal strike and a worker who knowingly
participates in the commission of an illegal strike are deemed to have lost their employment
status.
Buklod ng Manggagawa sa Chuayuco Steel Manufacturing Corporation (the union), a legitimate
labor organization, is the recognized bargaining agent of Chuayuco Steel Manufacturing
Corporation (the corporation) of which its co-petitioner Edwin Chua is the President.
In the election of the union officers, Camilo Lenizo (Lenizo) emerged as President. The
corporation however refused to recognize the newly elected officers for the reason that there is
an intra-union conflict between the factions of Lenizo and Romeo Ibanez, the former acting
union president.
The union staged a strike which causes illegal acts that intimidated and harassed the
corporation and non-striking employees. The strikers use physical violence and harass those
employees who are not on their side by shouting and threatening them not to go to work
anymore. The Labor Arbiter declared the strike illegal and thus, some of the members who
participated in the mass action lost their employment status.
ISSUE:
Whether or not some of the employees who participated in the strike should be reinstated
without loss of seniority rights
HELD:
Article 264 (a) of the Labor Code states that any union officer who knowingly participates in an
illegal strike and any worker or union who knowingly participates in the commission of illegal
acts during a strike may be declared to have lost his employment status.
Thus, a union officer may be declared to have lost his employment status if he knowingly
participates in an illegal strike and in this case, the strike is declared illegal by the court
because the means employed by the union are illegal.
PHILIPPINE
G.R.

COMMERCIAL
No.

INTERNATIONAL
158045.

BANK
VS.
February

ANASTACIO
28,

D.

ABAD
2005

Facts: Anastacio D. Abad was the senior Assistant Manager (Sales Head) of petitioner Philippine Commercial International Bank
(PCI Bank now Equitable PCI Bank)], when he was dismissed from his work. Abad received a Memorandum from petitioner
Bank concerning the irregular clearing of PNB-Naval Check of Sixtu Chu, the Banks valued client. Abad submitted his Answer,
categorically denying that he instructed his subordinates to validate the out-of-town checks of Sixtu Chu presented for deposit or
encashment as local clearing checks. During the actual investigation conducted by petitioner Bank, several transactions violative
of the Banks Policies and Rules and Regulations were uncovered by the Fact-Finding Committee. Consequently, the FactFinding Officer of petitioner Bank issued another Memorandum to Abad asking the latter to explain the newly discovered
irregularities. Not satisfied with the explanations of Abad, petitioner Bank served another Memorandum, terminating his
employment effective immediately upon receipt of the same. Thus, Abad instituted a Complaint for Illegal Dismissal.
Issue: Whether or not awarding of separation pay equivalent to one-half (1/2) months pay for every year of service to
respondent
is
gross,
the
same
being
contrary
to
law
and
jurisprudence.

Held: The award of separation pay is required for dismissals due to causes specified under Articles 283 and 284 of the Labor
Code, as well as for illegal dismissals in which reinstatement is no longer feasible. On the other hand, an employee dismissed for
any of the just causes enumerated under Article 282 of the Labor Code is not, as a rule, entitled to separation pay.
As an exception, allowing the grant of separation pay or some other financial assistance to an employee dismissed for just causes
is based on equity. The Court has granted separation pay as a measure of social justice even when an employee has been validly
dismissed, as long as the dismissal was not due to serious misconduct or reflective of personal integrity or morality.
ALABANG
G.R.

COUNTRY CLUB
No.

INC.,

ET

AL. VS.
157611.

NATIONAL

LABOR
August

RELATIONS

COMMISSION,
9,

ET

AL.
2005

Facts: Petitioner Alabang Country Club Inc. (ACCI), is a stock, non-profit corporation that operates and maintains a country club
and various sports and recreational facilities for the exclusive use of its members. Sometime in 1993, Francisco Ferrer, then
President of ACCI, requested its Internal Auditor, to conduct a study on the profitability of ACCIs Food and Beverage
Department (F & B Department). Consequently, report showed that from 1989 to 1993, F & B Department had been incurring
substantial losses. Realizing that it was no longer profitable for ACCI to maintain its own F & B Department, the management
decided to cease from operating the department and to open the same to a contractor, such as a concessionaire, which would be
willing to operate its own food and beverage business within the club. Thus, ACCI sent its F & B Department employees
individual letters informing them that their services were being terminated and that they would be paid separation pay. The
Union in turn, with the authority of individual respondents, filed a complaint for illegal dismissal.
Issue: Whether or not the clubs right to terminate its employees for an authorized cause, particularly to secure its continued
viability
and
existence
is
valid.
Held: When petitioner decided to cease operating its F & B Department and open the same to a concessionaire, it did not reduce
the number of personnel assigned thereat. It terminated the employment of all personnel assigned at the department.
Petitioners failure to prove that the closure of its F & B Department was due to substantial losses notwithstanding, the Court
finds that individual respondents were dismissed on the ground of closure or cessation of an undertaking not due to serious
business losses or financial reverses, which is allowed under Article 283 of the Labor Code. The closure of operation of an
establishment or undertaking not due to serious business losses or financial reverses includes both the complete cessation of
operations
and
the
cessation
of
only
part
of
a
companys
activities.

AGABON VS. NATIONAL LABOR RELATIONS COMMISSION


G.R. No. 158693. November 17, 2004
Facts: Private respondent Riviera Home Improvements, Inc. is engaged in the business of selling and installing ornamental and
construction materials. It employed petitioner Virgilio Agabon and Jenny Agabon as gypsum board and cornice installers on
January 2, 1992 until February 23, 1999 when they were dismissed for abandonment of work. Petitioners then filed a complaint
for illegal dismissal. The Labor Arbiter rendered a decision declaring the dismissal illegal. On appeal, the NLRC reversed the
decision because it found that the petitioners had abandoned their work and were not entitled to backwages and separation pay.
The Court of Appeals in turn ruled that the dismissal of the petitioners was not illegal because they had abandoned their
employment.
Issue: Whether or not petitioners were illegally dismissed.
Held: The dismissal should be upheld because it was established that the petitioners abandoned their jobs to work for another
company. Private respondent, however, did not follow the notice requirements and instead argued that sending notices to the
last known addresses would have been useless because they did not reside there anymore. Unfortunately for the private
respondent, this is not a valid excuse because the law mandates the twin notice requirements to the employees last known
address. Thus, it should be held liable for non-compliance with the procedural requirements of due process.
When the dismissal is for a just cause, 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.

HACIENDA BINO/HORTENCIA STARKE, INC./HORTENCIA L. STARKE VS. CANDIDO


CUENCA ET AL.
G.R. No. 150478. April 15, 2005
Facts: Hacienda Bino is a 236-hectare sugar plantation located at Negros Occidental, and represented in this case by Hortencia
L. Starke, owner and operator of the said hacienda. The 76 individual respondents were part of the workforce of Hacienda Bino
consisting of 220 workers, performing various works, such as cultivation, planting of cane points, fertilization, watering,
weeding, harvesting, and loading of harvested sugarcanes to cargo trucks. During the off-milling season, petitioner Starke issued
an Order or Notice which stated, that all Hacienda employees who signed in favor of CARP are expressing their desire to get out
of employment on their own volition. The respondents regarded such notice as a termination of their employment. As a
consequence, they filed a complaint for illegal dismissal. The respondents as complainants alleged that they are regular and
permanent workers of the hacienda and that they were dismissed without just and lawful cause.
Issue: Whether the respondents are regular or seasonal employees.
Held: The primary standard for determining regular employment is the reasonable connection between the particular activity
performed by the employee in relation to the usual trade or business of the employer. There is no doubt that the respondents
were performing work necessary and desirable in the usual trade or business of an employer. Hence, they can properly be
classified as regular employees. For respondents to be excluded from those classified as regular employees, it is not enough that

they perform work or services that are seasonal in nature. They must have been employed only for the duration of one season.
While the records sufficiently show that the respondents work in the hacienda was seasonal in nature, there was, however, no
proof that they were hired for the duration of one season only.

Mercidar Fishing Corporation vs. NLRC, G.R. No. 112574. October 8, 1998; 297 SCRA 440
Posted by Pius Morados on November 10, 2011

(Labor Standards Fishermen are not field personnels, Article 82)


Facts: Private respondent employed as a bodegero or ships quartermaster complained of being constructively dismissed by petitioner
corporation when the latter refused him assignments aboard its boats after he had reported to work. The Larbor Arbiter rendered a
decision ordering petitioner corporation to reinstate complainant with back wages, pay him his 13th month pay and incentive leave.
Petitioner claims that it cannot be held liable for service incentive leave pay by fishermen in its employ as the latter supposedly are field
personnel and thus not entitled to such pay under the Labor Code.
Article 82 of the Labor Code provides among others that field personnel shall refer to non-agricultural employees who regularly
perform their duties away from the principal place of business or branch of office of the employer and whose actual hours of work in the
field cannot be determined with reasonable certainty.
Issue: WON fishermen are considered field personnel.
Held: No. Although fishermen perform non-agricultural work away from their employers business offices, the fact remains that
throughout the duration of their work they are under the effective control and supervision of the employer through the vessels patron or
master.

Jo vs. NLRC, G.R. No. 121605, February 2, 2000; 324 SCRA 437
Posted by Pius Morados on November 10, 2011

(Labor Standards Existence of employer-employee relationship)


Facts: Private respondent working as a barber on piece-rate basis was designated by petitioners as caretaker of their barbershop.
Private respondents duties as caretaker, in addition to his being a barber, were: 1) to report to the owners of the barbershop whenever
the aircondition units malfunction and/or whenever water or electric power supply was interrupted; 2) to call the laundry woman to wash
dirty linen; 3) to recommend applicants for interview and hiring; 4) to attend to other needs of the shop. For this additional job, he was
given an honorarium equivalent to1/3 of the net income of the shop.
Private respondent left his job voluntarily because of his misunderstanding with his co-worker and demanded separation pay and other
monetary benefits. Petitioners contends that respondent was not their employee but their partner in trade whose compensation was
based on a sharing arrangement per haircut or shaving job done.
Issue: Whether or not there exist an employer-employee relationship.
Held: Yes. In determining the existence of an employer-employee relationship, the following elements are considered: 1) selection and
engagement of worker; 2) power of dismissal; 3) the payment of wages; and 4) the power to control the workers conduct, with the latter
assuming primacy in the overall consideration. The power of control refers to the existence of the power and not necessarily to the
actual exercise thereof. It is not essential for the employer to actually supervise the performance of duties of the employee; it is enough
that the employer has the right to wield that power.

Traders Royal Bank vs NLRC, 189 SCRA 274; G. R. No. 88168, August 30, 1990
Posted by Pius Morados on November 15, 2011

(Labor Standards bonus, diminution of benefits)


Facts: Respondent union filed a letter-complaint against petitioner TRB for the diminution of benefits being enjoyed by the employees
since time immemorial, e.g. mid-year bonus, from 2 months gross pay to 2 months basic and year-end bonus from 3 months gross to
only 2 months.
Petitioner insisted that it had paid the employees holiday pay. The practice of giving them bonuses at years end, would depend on how
profitable the operation of the bank had been.
NLRC found TRB guilty of diminution of benefits due to the private respondents and ordered it to pay the said employees claims for
differentials in their holiday, mid-year, and year-end bonuses.
Issue: Whether or not bonuses are part of labor standards.

Held: No. A bonus is a gratuity or act of liberality of the giver which the recipient has no right to demand as a matter of right. It is
something given in addition to what is ordinarily received by or strictly due the recipient. The granting of a bonus is basically a
management prerogative which cannot be forced upon the employer who may not be obliged to assume the onerous burden of
granting bonuses or other benefits aside from the employees basic salaries or wages.

Ace Navigation Co., Inc. vs CA, 338 SCRA 70


Posted by Pius Morados on November 17, 2011

(Labor Standards Tips)


Facts: Under the POEA approved contract of employment, private respondent, who works as a bartender on board the vessel MV
Orient Express, shall receive a monthly basic salary of US S450.00, flat rate, including overtime pay for 12 hours of work daily plus tips
of US S2.00 per passenger per day. He was also entitled to 2.5 days of vacation leave with pay each month.
Private respondent filed a complaint before the labor arbiter for vacation leave pay and unpaid tips amounting to US S36,000.00. The
Labor Arbiter ordered the recruitment agency and the principal to pay jointly and severally private respondent his vacation leave pay.
The claim for tips was dismissed for lack of merit.
On appeal, NLRC ordered the payment of unpaid tips.
Issue: WON employers are liable to pay tips.
Held: No. Payment for overtime was included in the monthly salary, the supposed tips mentioned in the contract should be deemed
included thereat. It is presumed that the parties were aware of the plain, ordinary and common meaning of the word tip. A bartender
cannot feign ignorance on the practice of tipping and that tips are normally paid by customers and not by the employer.
It has been said that a tip denotes a voluntary act, but whether considered from the standpoint of the giver or the recipient, a tip lacked
the essential element of a gift, namely, the free bestowing of a gratuity without a consideration, and that despite its apparent
voluntariness, there is an element of compulsion in tipping.

William Barroga vs Data Center College et al


G.R. No. 174158

June 27, 2011

Facts: William Barroga was hired as an instructor by Data Center College in its Laoag City, Ilocos Norte
campus and later was re-assigned to Vigan, Ilocos Sur. Part of the deal for his re-assignment was that he will
receive a monthly allowance for board and lodging while performing his job in Vigan. However, Data Center
made it clear in writing that Barroga is only entitled to the additional allowance and such may be changed or
forfeited if he will be re-assigned somewhere. Later, Barroga was also assigned as the temporary Head of
Education; he was also given a scholarship grant to support his post-graduate studies. Barroga was advised that
he will be transferred to Bangued, Abra. He refused because his father was sick and second, he found out that
there will be no additional allowance this time and that he will be working there as an instructor and not as a
Head of Education. Hence, he filed a labor case against Data College for constructive dismissal.
ISSUE: Whether or not the absence of additional allowance in Barrogas supposed re-assignment constitutes a diminution
of benefits.
HELD: No. It is true that as a general rule, benefits and perks enjoyed by employees cannot be reduced and discontinued
or diminished. But this rule is only applicable to grants or benefits which are founded on an express policy or has ripened
into a practice over a long period which is consistent and deliberate. In the case at bar, Barrogas additional allowance
while in Vigan is not permanent. In fact, Data College made clear that such allowance is only applicable while Barroga is
in Vigan and such allowance is no longer applicable if he is going to be assigned somewhere. Further, Data College
showed that it is experiencing financial difficulties hence the need to withdraw the scholarship previously granted to
Barroga. On the issue of his removal as Head for Education, the same is valid. Barroga was merely assigned in a
temporary capacity, such designation is terminable at the pleasure of Data College which made such appointment.

JAKA Food Processing vs. Pacot - GR No. 151378 Case Digest


FACTS:
Respondents were hired by JAKA until their termination on August 29, 1997 because the Corporation was in
dire financial straits. It was not disputed that they were terminated without complying with the requirement
under Art. 283 of the Labor Code regarding the service of notice upon the employees and DOLE at least one
month
before
the
intended
date
of
termination.
ISSUE:
Whether or not full backwages and separation pay be awarded to respondents when employers effected
termination
without
complying
with
the
twin
notice
rule.
RULING:
The dismissal of the respondents was for an authorized cause under Article 283. A dismissal for authorized
cause does not necessarily imply delinquency or culpability on the part of the employee. Instead, the dismissal
process is initiated by the employers exercise of his management prerogative, i.e. when the employer opts to
install labor-saving devices, when he decides to cease business operations or when he undertakes to
implement a retrenchment program.
SAMUEL
G.R.

SAMARCA
No.

VS.
146118.

ARC-MEN
September

INDUSTRIES,
29,

INC.
2003

Facts: Samuel Samarca was employed as a laborer by Arc-Men Industries, Inc. On September 26,
1993, petitioner filed an application for an emergency leave of absence on account of his sons
hospitalization. Upon his return for work, petitioner was immediately served with a notice of
respondents order suspending him for 30 days. Feeling aggrieved, petitioner filed a complaint for
illegal suspension against respondent and its owner. During the pendency of the complaint,
petitioners 30-day suspension ended. Consequently, respondent, in a letter, directed petitioner to
report for work immediately. However, he refused, prompting respondent to send him a Notice to
Terminate, directing him to submit, within 5 days, a written explanation why he should not be
dismissed from the service for abandonment of work. For his part, petitioner submitted a letter-reply
explaining that because of the pendency of his complaint for illegal suspension with the Labor arbiter,
he could not report for work. Respondent, finding the petitioners written explanation insufficient,
decided to terminate his services via a Notice of Termination. Consequently, petitioner filed an
amended
complaint
for
illegal
dismissal.
Issue:

Whether

or

not

petitioner

abandoned

his

work.

Held: To constitute abandonment, two elements must concur: (1) The failure to report for work or
absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee
relationship manifested by some overt acts. Mere absence is not sufficient. It is the employer who has
the burden of proof to show a deliberate and justified refusal of the employee to resume his
employment
without
any
intention
of
returning.
The above twin essential requirements for abandonment to exist are not present in the case at bar.
Petitioners absence is not without a justifiable reason. It must be recalled that upon receipt of the
Notice to Terminate by reason of abandonment, petitioner sent respondent a letter explaining that he
could not go back to work because of the pendency of his complaint for illegal suspension. And
immediately after he was dismissed for abandonment of work, he lost no time to amend his complaint
to illegal dismissal. This alone negates any intention on his part to forsake his work. It is a settled
doctrine that the filing of a complaint for illegal dismissal is inconsistent with the charge of
abandonment, for an employee who takes steps to protest his dismissal cannot by logic be said to
have abandoned his work.