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“Dismissal is too harsh a penalty” Constructive dismissal?

Yes because repeated


sexual harassment creates hostile environment
2 types of Dismissal

1. Just Cause -initiated by employee


b. Gambling/Betting- promiscuous effect
2. Authorized Cause – initiated by employer
c. Drug Test – consists of 2 test: a. initial test, b.
Distinguish Just Cause from Authorized Cause
d. Immorality
1. Toyota Doctrine - No separation pay for just
cause dismissal- involves moral character Why immoral? When is a conduct immoral? Not
acceptable by community
-abandoning PLDT ruling
Immorality shall be based not on a purely
*Gwenfield v NLRC
religious morality but on a secular
*Agabon v NLRC- Serrano paved way for abuse morality/public morality
of employer; dismiss no pay later/ belated due
Question:
process
1. Unmarried teachers have sexual intercourse
-Employer failed with due process->
in privacy and have a child out of wed lock?
Nominal damages
Dismissal not proper
*Serrano v NLRC – dismissal is ineffectual;
2. Employees in religious charitable institution,
employee is entitled to backwages
had sexual intercourse, child is born? Dismissal
Serious misconduct – improper wrongful not proper
conduct committed in aggravated manner
*Innocente Case
2. Just Cause dismissal – 2 notice rule; no
3. A teacher having affair with student, both of
separation pay pursuant to Toyota case
legal capacity? Dismissal not proper
Authorized Cause- 2 notice rule-> DOLE and
*Chua Clavio Case
employee with separation pay
4. Sexual Intercourse in company premises?
Yes, dismissal was proper. Sexual Intercourse
a. Sexual Harassment inflamed by either lust or affection should be
done in a manner that should not offend public
2 types: decency.
1. Quid Pro Quo - request of sexual favor
committed by superior officer having moral
ascendency over victim -> economic in nature e. Fighting in company premises

2. Hostile Work Environment – “IHO” -placing  Mere shouting and vexing not
in INTIMDATING HOSTILE considered fighting
OFFICE/ENVIRONMENT because of conduct of  Must be physical
superior officer  Why? Stop work-> No work no pay

Ie. Sexual remark, utterances, physical conduct


of a sexual nature
d. Theft – act of dishonesty; even if theft of -justice outside law; on some equitable
property of co-employee it is analogous to ground, considering employee has been in
serious misconduct service for 23 years dismissal is too harsh of a
penalty
caveat by SC- in Theft you have to consider the
value of the property taken if value is -dismissed for just cause- separation pay; award
negligible, dismissal is too harsh a penalty. financial assurance

Other basis for objection: 7. length of service

1. Length of service is overshadowed by gravity 8. gravity of offense


offense-> considering his length of service

2. Principle of Compassion-> ie if he is a
Willful disobedience -deliberate, intentional
breadwinner
disobedience of a reasonable rule or regulation
3. First offence rule will not apply depending on by a company
gravity of offense, position and nature of work
Question In a motor pool, there was a
o Manager v rank and file regulation that no company driver can take out
o Nature of business – ie. Educational, a company vehicle without approval of
religious wherein morality is given a higher supervisor, took out car without permission
standard because supervisor was not there.
o Fiduciary relationship – ie. Teller
First offense not basis but a repeated
o Business which requires strict rules – ie. Gas
commission of same offense will cause dismissal
station no smoking

4. Totality of infractions -infractions committed


by employee can be basis of dismissal Gross and Habitual Neglect of Duty
 What if they have already been punished? SC- habituality may not be considered since
It cannot be basis otherwise it is offense was too gross that it will justify
punishment for same offence, but but it dismissal
can still be basis in relation to another
subsequent offence -ung AND-> OR talaga siya

5. Principle of charity, compassion and NOTE: The fact that he filed constructive
understanding dismissal will negate abandonment

-applied side by side as a ground with: Abandonment- intention to severe employer


Protection of labor; social justice; employee relationship shown by overt acts;
compassionate justice employer should observe due process-> 2
notice rule and hearing and conference
-applied to lowly employee- will affect him
including that of his family, indigent, poor, 1st notice- last known address registered mail
impoverished, those who have less in life shall
have more in law
Resignation- voluntary act; personal reasons;
6. Principle of Equity – not provided by law or filed in favor of exigency of the service
rules? Provide equity
Reemployment – taken back by employer; c. Prescription of 4 yrs
considered as new employee as there was
d. Overage
already a termination of EE and ER relationship;
restored not necessarily same position and his e. Loss of Business
reemployment is a matter of discussion
*see Manila Chronicle case
Reinstatement- restored to former position
F Physical Disability
Oder from NLRC, CA-immediately executory- no
need for writ of execution g. Mandated by Law

a. actual- restored to former position ie. RA 1822 Migrant workers and overseas
workers- OFW and seaman employed by fixed
b. payroll – reinstated in payroll does not term or contractual basis
perform

What if employer is stubborn?

-Motion for contempt


Constructive dismissal
-monthly salary
-dismissal in disguise
-Labor Arbiter can issue motu-proprio writ of
execution for purpose of reinstatement 1. serious insult

When is reinstatement barred? 2. unbearable treatment of employer

1. fear of reprisal 3. made it hard for employer to perform his


duties and functions
2. fear of death
4. premature repatriation of OFW including a
3. waiver seaman
4. laches – labor as an economicgood is 5. prejudicial inconvenient unreasonable
perishable transfer- _____ doctrine

6. demotion in rank; demunition in pay


May strained relationship be used to bar
reinstatement by employer? NO. except when
there is severe antagonism Willful breach of trust

Remedy: pay separation pay instead of Mere breach of trust may justify dismissal
reinstatement Ie. Teller,accountant- in relation to company’s
a. position has been filled up – he should be money and property
reinstated in substantially equivalent position; if Serious misconduct- theft refers only to
not available pay separation pay as compromise company money and property; stolen money of
reinstatement co-employee is analogous serious misconduct
b. position abolished- legal and physical
impossibility; pay separation pay
Authorized Causes
1. Introduction of Labor Saving Device

*San Miguel Beer Case – install rotating Question ABS CBN because of serious business
machine that doubles production-> decrease in losses closed down radio centers, those
need for labor affected charged against ABS CBN including
payment of separation pay. Is contention of ABS
Automation/replacement of workers by
CBN valid?
machine which results in technological
unemployment Yes. Not total closure but merely partial. A
closure with particular economic activity. It
Requirements:
should be treated as form of retrenchment.
1. 2 separate notice rule
ABS still liable to pay seaparation pay.
2. fair and reasonable criteria- not provided by
law ie. Agreed upon CBA company policy
3. Redundancy
-deficiency in production in management
- there is no duplication of work functions; it is
-LIFO rule
superfluous, it is outcome of
-seniority
Ie. Overhiring of workers, surplus workers,
3. good faith – not resort to constructive some if not all positions will become redundant
dismissal
-lack of raw materials
4. separation pay – 1 month pay or 1 m/year of
-company not losing
service
-full month pay/yr of service

2. Retrenchment – downsize, reduce, delayer


4. Disease
-to prevent losses
-1/2 month pay- other benefits ie. Philhealth
Requirements:
- rests upon employee to prove disease thru
1. 2 notice rule
medical certificate
2. fair and reasonable
- allowed to go LOA
3. good faith
-curable within 6 months if not discharged
4. proof of financial losses

5. separation pay
5. Closure of business

- total closure grounded on economic losses ->


What is contemplated by law on preventive no separation pay
losses? If the company can perceive that sooner
-if by mere prerogative-> separation pay
or later its economy will go down to the drain
the company should do something and not wait
until there are actual losses