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2014 Labor Law Answers by Atty. Kato
2014 Labor Law Answers by Atty. Kato
ANSWER:
II
ANSWER:
I will advise Lucy to file a complaint for constructive dismissal, with
prayer for reinstatement, because her floating status has exceeded six (6)
months.
By virtue of the nature of her job, Lucy attained tenure on the first day
of her employment. As a regular employee, therefore, she could only be
dismissed for a just or authorized cause. Expiration of her last contract was
neither a just nor authorized cause. Hence, she was illegally dismissed.
Moreover, her term employment contracts were contracts of adhesion;
hence, they should be taken against Hambergis Inc. because of its obvious
intent to use periods to bar her regularization.
III
Lolong Law Firm (LLF), which employs around 50 lawyers and 100
regular staff, suffered losses for the first time in its history. The management
informed its employees that it could no longer afford to provide them free
lunch. Consequently, it announced that a nominal fee would henceforth be
charged. Was LLF justified in withdrawing this benefit which it had
unilaterally been providing to its employees? (1%)
(D) No, because it is a fringe benefit that has already ripened into a
demandable right.
ANSWER:
(D) No, because it is a fringe benefit that has already ripened into a
demandable right.
Note:
IV
ANSWER:
Yes.
Comment:
(E) Suppose that in the election, the unions obtained the following
votes: A-250; B-150; C-50; 40 voted no union; and 10 were segregated
votes. Should Union A be certified as the bargaining representative?
ANSWERS:
(C). No. Union A should not be declared the winner because it failed to
garner majority of the valid votes. The majority of 500 votes, representing
valid votes, is 251 votes. Since Union A received 200 votes only, it did not
win the election.
ANSWER:
VII
(C) they are duly-accredited members of the legal aid office recognized
by the DOJ or IBP
ANSWER:
themselves. Note:
VIII
(B) Assuming the company admits the strikers, can it later on dismiss
those employees who committed illegal acts?
ANSWERS:
(B) After admission, the company can hold the strikers behind the
illegalities accountable for their acts. If found to have committed acts
justifying a dismissal, said employees can be terminated after due process.
(C) No. The positions left behind by strikers are deemed legally
unoccupied. Moreover, the hiring of replacement workers does not terminate
employer-employee relationship because a strike is a temporary stoppage of
work only. Finally, replacement workers are deemed to have accepted their
engagement subject to the outcome of the strike.
IX
ANSWER:
ANSWER:
XI
Lionel, an American citizen whose parents migrated to the U.S. from
the Philippines, was hired by JP Morgan in New York as a call center
specialist. Hearing about the phenomenal growth of the call center industry
in his parents native land, Lionel sought and was granted a transfer as a call
center manager for JP Morgans operations in Taguig City. Lionels
employment contract did not specify a period for his stay in the Philippines.
After three years of working in the Philippines, Lionel was advised that he
was being recalled to New York and being promoted to the position of
director of international call center operations. However, because of certain
family reasons, Lionel advised the company of his preference to stay in the
Philippines. He was dismissed by the company. Lionel now seeks your legal
advice on: (6%)
ANSWER:
(B) Lionel can file an illegal dismissal case in the Philippines. Being a
resident corporation, JP Morgan is subject to Philippine Labor Laws. And,
although hired abroad, Lionels place of work is Taguig. Hence, he can lodge
his complaint with the NLRC-NCR which has territorial jurisdiction over his
workplace (Sec. 1, Rule IV, NLRC Rules of Procedure, as amended).
(C) Lionel has reasonable chances of winning. His recall to the USA
was not a lawful lateral transfer that he could not refuse. On the contrary, it
was a scalar transfer amounting to a promotion which he could validly
refuse. Absent willful disobedience, therefore, his termination is groundless.
XII
Which of the following groups does not enjoy the right to self-
organization? (1%)
ANSWER:
Note:
Not (A) because, under Article 243 of the Labor Code, employees of
charitable, religious, educational and medical institutions are covered
employees.
Not (C) because the less than 10 rule in the Labor Code affects right
to labor standards benefits, in particular holiday pay and service incentive
leave (Articles 94 and 95), not right to self-organization.
XIII
Don Luis, a widower, lived alone in a house with a large garden. One
day, he noticed that the plants in his garden needed trimming. He
remembered that Lando, a 17-year old out-of-school youth, had contacted
him in church the other day looking for work. He contacted Lando who
immediately attended to Don Luiss garden and finished the job in three
days. (4%)
(B) Does Don Luis need to register Lando with the Social Security
System
(SSS)?
ANSWER:
Comment:
The question is tricky. The examiner wants to lead the examinees into
considering Lando as a kasambahay because he is listed ( gardener), and
giving him SSS coverage pursuant to RA 10361. However, Lando is an
occasional or sporadic gardener; hence, he is not a kasambahay.
XIV
Luisito has been working with Lima Land for 20 years. Wanting to work
in the public sector, Luisito applied with and was offered a job at Livecor.
Before accepting the offer, he wanted to consult you whether the payments
that he and Lima Land had made to the Social Security System (SSS) can be
transferred or credited to the Government Service Insurance System (GSIS).
What would you advice? (4%)
ANSWER:
I would tell Luisito that, under the Limited Portability Law, he will carry
with him his creditable service and paid contributions as he moves from one
system to the other. Hence, he may accept the job offer without fearing that
he would lose his years of service in the private sector. Actually, they can be
totalized with his years of service in the public sector in the event that he
would not be able to qualify for benefits due solely to insufficiency of
creditable service.
XV
ANSWER:
Comment:
XVI
ANSWER:
EGE could file the petition for certification election because it was
requested to collectively bargain and it could not do so because SEGE was
not the EBR. After it filed the petition, however, it reverted to its standby
status. Therefore, it could not interfere with the selection process which was
the
exclusive prerogative of its workers. It could only participate in the inclusion-
exclusion proceedings, and nowhere else.
XVII
ANSWERS:
(A) Under E.O. 180, Philhealth employees can organize. Thru their
organization, they can negotiate with Philhealth over terms and conditions of
employment not fixed by its charter, Civil Service Law, or applicable salary
standardization law.
(B) No. Although the right to organize implies the right to strike, law
may withhold said right. E.O. 180 is that law which withholds from
government employees the right to strike. Hence, they cannot resort to
strikes and similar concerted activities to compel concessions from the
government.
XVIII
(D) strike vote results must be furnished to the NCMB at least seven
(7) days before the intended strike.
ANSWER:
Explanation:
Options B, C and D refer to strike procedures. B refers to the
Comment:
XIX
If you were the Labor Arbiter assigned to the case, how would you rule
on the companys motion to dismiss? (5%)
ANSWER:
XX
Lito was anticipating the bonus he would receive for 2013. Aside from
the 13th month pay, the company has been awarding him and his other co-
employees a two to three months bonus for the last 10 years. However,
because of poor over-all sales performance for the year, the company
unilaterally decided to pay only a one month bonus in 2013. Is Litos
employer legally allowed to reduce the bonus? (4%)
ANSWER:
Yes.
XXI
An accidental fire gutted the JKL factory in Caloocan. JKL decided to
suspend operations and requested its employees to stop reporting for work.
After six (6) months, JKL resumed operations but hired a new set of
employees. The old set of employees filed a case for illegal dismissal. If you
were the Labor Arbiter, how would you decide the case? (4%)
ANSWER:
XXII
ANSWER:
relationship. Note:
Not (B) because the stem implies that the employer has a choice
between reinstatement and non-reinstatement. Here, he has no option
at all because the position in question no longer exists.
Not (C) because the employer has no option due to the closure of his
business.
Not (D) because the employer cannot choose not to reinstate due to
his employees decision not to be reinstated.
Comment:
XXIII
ANSWER:
The dispute brought to the RTC is a labor dispute despite the fact that
the disputants may not stand in the proximate relation of employer and
employee (Art. 212, LC). Moreover, the issue of regularization is resolvable
solely thru the application of labor laws. Under both Reasonable Causal
Connection Rule and Reference to Labor Law Rule, the dispute is for labor
tribunals to resolve.
ANSWER:
Comment:
There are two separate grounds for dismissal. One is a just cause, the
other is not. To the question Can Lanz be legally terminated on these
grounds?, one should not give an answer that treats the two as though they
were one and the same. This is because, based on the crafting of previous
questions, it should be obvious that the examiner has a clinical mind.
Alternative Answer:
XXV
ANSWER:
Note:
Not (B) because the basis of separation pay under Art. 289
(renumbered), LC, is monthly salary only.
Not (C) because monthly salary means basis salary which excludes
commissions and allowances.
XXVI
(B) If, before the DOLE Secretary assumed jurisdiction, the striking
union members communicated in writing their desire to return to work, which
offer Liwanag Corporation refused to accept, what remedy, if any, does the
union have?
ANSWER:
(B) The union may file a complaint for illegal lockout, with prayer for
immediate reinstatement. The refusal of Liwanag Corporation to admit
the strikers back is an illegal lockout because it is not preceded by
compliance with prescribed pre-lockout procedure. If the lockout is
unreasonably prolonged, the complaint may be amended to charge
constructive dismissal.
XXVII
(A) exclusive appellate jurisdiction over all cases decided by the Labor
Arbiter
ANSWER:
Comment:
This bystander initially answered the questions on a blue pad with his
pen. It took him 2 hours to answer the 27 questions. This means that the
examination was really long. For another 2 hours, or more, he reviewed and
edited his raw answers for online sharing. Regardless, he is not totally sure if
he has correctly answered all. Therefore, he appeals to the examiner to be
liberal. After all, his questions are really for higher forms of life. He did a
great job.