You are on page 1of 13

LABOR LAW II – Atty.

Charisma Nolasco

SECURITY OF TENURE 4. Probationary


 A regular employee is entitled to security of tenure and  Under the Labor Code, the probationary period shall not
may only be terminated based on either just or exceed 6 months. Are probational employee- regular
authorized causes. employee? Yes, because their work is necessary and
desirable to the business. Take note that the reasonable
RELIEFS IN CASE OF ILLEGAL DISMISSAL {RFO} standards set shall also be made known to the
1. Reinstatement without loss of seniority, rights and other  Instance that a probationary employee would become
privileges; a regular employee from day 1: when the probationary
2. Full backwages; period was not communicated and/or criteria for
3. Other benefits or their equivalent monetary benefits. evaluation was not made known to the employee at the
time of the engagement.
REINSTATEMENT  Probationary employment will not refer to the period but
 Immediately executory. Employer has to either RE-ADMIT rather the purpose for hiring the employee. Probationary
them under the same terms and conditions prevailing employees are actually regular employees, only that the
prior to their dismissal, or to REINSTATE THEM IN THE employer would want to be assured that his employee
PAYROLL would be performing at par with his reasonable
standards. The employer wants to test first if he is fir for
BACKWAGES the job. Probationary employee may be terminated.
 From the time compensation is withheld up to actual 5. Casual
reinstatement.  Neither regular nor seasonal employees. They do not
 Backwages should not be diminished or reduced by the perform work or services necessary or desirable to the
earnings derived by him elsewhere during the period of trade/business of the employer.
his illegal dismissal.
Note:
WHAT ARE THE DIFFERENT CLASSIFICATIONS OF EMPLOYEES An employee can be considered as regular in the following
{CaReSPro2} instances:
1. Regular Employees 1. Those employees who perform work that is usually necessary
 Those employees who perform work that is usually and desirable to the business of the employer.
necessary and desirable to the business of the employer. 2. Project employees whose duration or scope was not made
2. Project known to him at the time of his hiring. Thus, making him a
 The employment is fixed for a specific period or regular employee from the very day he started working.
undertaking; the fixed period should be determined at 3. Probationary employee who would be allowed to work
the time of the employees’ engagement; beyond the probationary period and those whose
 Instance that a project employee would become a performance standards were not made known to them at
regular employee from day 1: if the specific period or the time of his/her engagement. Thus, the employee will
undertaking was not communicated to them. then be considered a regular employee from the first day he
3. Seasonal started working.
 The work or service to be performed is seasonal in nature 4. A casual employee who is hired for more than one year.

1
LABOR LAW II – Atty. Charisma Nolasco

3. Relating to the performance of employee’s duties


TERMINATION BY EMPLOYEE {SICO} 4. Rendering the employee unfit to continue working for
1. Serious Misconduct; the employer
2. Insult or Unbearable Treatment; 2. Willful Disobedience/Insubordination
3. Commission of a Crime;  This should pertain to an unlawful and intentional
4. Other analogous causes. attitude; wrongful and perverse. There must also be a
lawful order coming from the management, which
Notes: should have been made known to the employee.
 If there is a cause in terminating, the 30 day notice is not Requisites:
required. 1. Disobedience or insubordination;
 If there is no valid cause for the employee to sever the 2. Wilful or intentional characterised by a wrongful and
employer-employee relationship, that is a case of perverse attitude;
resignation. 3. Order violated must be reasonable, lawful and made
 A resignation must be accepted by the employer. Such known to the employee;
that, if the resignation is later on accepted by the 4. Pertain to duties which he has been engaged to
employer, the employee cannot unilaterally withdraw discharge;
his resignation.
3. Gross and Habitual Neglect of Duty
TERMINATION BY EMPLOYER  Negligence has to be grave and habitual
1. The grounds should either be just cause or authorized  Gross negligence refers to want of care in the
causes; performance of one’s work or duty.
2. There must be (a) Substantive Due Process and (b)  Habituality refers to repeated failure to perform one’s
Procedural Due Process duty for a period of time.
 One should take note all the infractions committed by
JUST CAUSES {Serious-Willful-GFCO} the employee during the period of his employment. The
1. Serious Misconduct offenses committed by him should not be taken single
 Transgression should be serious and grave; it should and separately.
pertain to improper or wrongful conduct that Requisites:
transgresses some established rules. 1. Neglect of duty;
 This should not pertain to mere error in judgment. 2. Gross and habitual in character
 Misconduct must have reasonable relation to the work
performed by the employee. It must show that the 4. Fraud and Willful Breach of Trust
employee has become unfit to continue being an Requisites:
employee of the employer. 1. Act, omission or concealment;
2. Involving a breach of legal duty, trust or confidence justly
REQUISITES reposed;
1. Misconduct
2. Grave and aggravated in character

2
LABOR LAW II – Atty. Charisma Nolasco

3. Committed against the employer or his/her BUT these instances should be indicative of the
representative; losses incurred by the employer that would make the employer
4. In connection with the employees work decide to retrench the employees.
 Retrenchment is a last resort. There should be other
 This is also known as Loss of Trust and Confidence. remedies that were resorted to first by the employer
 Requisites: before resorting to retrenchment such as, cost-saving
a) Loss of trust and confidence should not be simulated devices, compression of work schedule to save up
b) It should not be used as a subterfuge on the part of electricity, etc. The employer should prove that these
the employer; were implemented first to save the financial condition of
c) It may not be arbitrarily asserted by the employer; the company.
d) It must be genuine and not a mere afterthought.  Requirements:
 This covers cases involving employees occupying
positions of trust and confidence: 1. Reasonably necessary and likely to prevent business
a) Managerial Employees; losses;
b) Confidential Employees – employees holding 2. Losses (if incurred) should not be de minimis but
company funds/property. substantial, serious, actual, and real; if expected,
should be reasonably imminent;
5. Commission of a crime or offense by the employee against 3. Proven by sufficient and convincing evidence;
the person of his employer or any immediate member of his 4. Retrenchment must be in good faith, for the
family or his duly authorized representative; and advancement of employer’s interest and not to defeat
or circumvent the employee’s right to security of
6. Other Analogous Causes tenure;
 The commission of a crime against the employer is a 5. Fair and reasonable criteria in ascertaining who would
valid cause of dismissal. be dismissed
 Abandonment is one example but for it to avail:
a) There must be failure to report to work without 2. Serious business losses/Closure/Cessation
reasonable/justifiable ground on the part of the  Not every loss incurred will mean that the employer is
employee; experiencing serious business losses; the losses should be
b) There must be a clear intention to sever the substantial.
employer-employee relationship.  The 30-day notice to the DOLE is important so that it can
ascertain the veracity of the claim of serious business
AUTHORIZED CAUSES {InReReCD} losses.
1. Retrenchment  The 30-day notice to the employees is important so they
 Termination by the employer through no fault of the can look for another job.
employee is resorted to because of the following
instances: 3. Redundancy
1) Industrial depression;
2) Seasonal fluctuation, etc.

3
LABOR LAW II – Atty. Charisma Nolasco

 It does not pertain to redundant positions but pertains to 5. Fair and reasonable criteria in selecting the employee
the business demands of the company operation.
REQUISITES:
PROCEDURAL DUE PROCESS
1. Superfluous positions or services of employees; Twin-notice Requirement
2. In excess of what is reasonably demanded by the a. First notice/Show-Cause Notice {PIPA}
actual requirements of the enterprise to operate  this should contain:
economically and efficiently; 1) the infraction committed by the employee;
3. Good faith in abolishing redundant positions; 2) existing policy violated by the employee or a provision
4. Fair and reasonable criteria in selecting the employee in the LC;
5. Adequate proof of redundancy (i.e. new staffing 3) penalty imposed to the errant employee;
pattern, feasibility 4) ample opportunity to be heard.
b. Notice of Termination: {RPP}
studies/proposals, viability of the new created positions,  the employee should be apprised of
job description, approval by the management of the 1) the results of the investigation;
restructuring) 2) policy violated;
3) the penalty to be imposed. Remember that dismissal
4. Disease is not the only penalty
 The labor code provides that the employee contracted
a disease and that his continue employment would be RETIREMENT
prejudicial not only to himself, but his co-workers.  60 (optional), 65 (compulsory), 5 years of service. If there
 Separation pay must be awarded to the dismissed is an existing CBA providing for retirement, as between
employee. the CBA and the provisions of the LC, the CBA should be
 the omnibus rules provide that there must be a followed. If the CBA provides for a lower age of
certification coming from a competent public health retirement, let’s say 50 years old is the compulsory
authority that the illness of the employee cannot be retirement age under the CBA, can an employee who
treated for a period of 6 months reached 50 years later on complain that he/she has
been illegally dismissed? NO. The parties have validly
5. Installation of labor saving device agreed on the age of retirement. But if the CBA provides
for lesser benefits than those provided in the statutes, LC,
you have to follow those statutorily prescribed.
1. Introduction of machine, equipment or other devices;
 Take note of the retirement package: half month salary
2. In good faith;
(15 days + 1/12 of the 13th month pay + cash equivalent
3. Valid purpose (save on cost, enhance efficiency and
of 5 days SIL).
other justifiable economic reasons)
4. No other option available than the introduction of
machinery or equipment and the consequent
termination of the employee

4
LABOR LAW II – Atty. Charisma Nolasco

Right to Self-Organization any specific occupational or geographical grouping


within such employer unit.
SCOPE : All persons employed in commercial and agricultural
enterprises ... religious, charitable or educational institutions, RIGHTS and CONDITIONS (Art. 247, LC)
whether operating for profit or not
EXTENT: Form, Join or Assist labor organizations (1) Elect union officers, including those of the national
union/federation
PURPOSE: Period: every 5 years
(1) Collective bargaining Qualifications to run for elective or appointive positions:
(2) Mutual aid and protection - Ambulant, intermittent and (a) Member in good standing
itinerant workers, self-employed, rural workers and those (b) Not a member of a subversive organization
without definite employers (c) Not directly or indirectly engaged in subversive activities
(d) Not convicted of a crime in involving moral turpitude
GOVERNMENT EMPLOYEES, may only have the right to form
associations for purposes not contrary to law Basis to determine eligible voters

No right to self-organization 1. Applicable payroll period and employee’s status


1. Managers(Art.255,LC) 2. Payroll of the month next preceding the labor dispute in
2. Confidential Employees (Confidential employee rule / case of regular employees
Doctrine of Necessary Implication)
Grounds for Impeachment/Expulsion
Labor Code, as follows provides that: {DEAF}
Confidential employees are defined as those who  Irregularities in the approval of resolutions concerning
(1) assist or act in a confidential capacity, compensation of officers other than salaries and
(2) to persons who formulate, determine, and effectuate expenses due to their positions (Art. 247[k], LC)
management policies in the field of labor relations.  Any violation of the rights and conditions of
membership (Art. 247, LC)
Commingling/Mixture  Failure to submit reportorial requirements (Art. 248-A,
EFFECT: Employees outside of the bargaining unit are deemed LC)
excluded (Art. 256, LC)  Misuse of illegal disbursement of labor education and
research fund (Omnibus Rules)
Bargaining Unit

 A group of employees sharing mutual interests within a


given employer unit, comprised of all or less than all of
the entire body of employees in the employer unit or

5
LABOR LAW II – Atty. Charisma Nolasco

Reportorial requirement 1. Upon issuance of charter certificate


PURPOSE: Filing of a petition for certification election
1. List of newly-elected officers/appointive officers within 2. Upon submission of
30 calendar days after election or change in the list of (a) names of officers, address of principal office and
officers (Art. 247[c]), minutes of election and list of (b) Constitution and by-laws
voters (Art. 248-A) PURPOSE: To exercise rights and privileges of a legitimate labor
2. Rendering of account by the treasurer or responsible union
officer:
(a) at least once a year within 30 days after close of Cancellation of Union Registration
fiscal year;
(b) such other times as may be required by a resolution GROUNDS (ART. 244-A, LC)
of majority of the members; 1. Misrepresentation, fraud, false statement
(c) upon vacating the office
• Constitution and by-laws
3. Constitution, by-laws, amendments, minutes of
ratification, list of members who took part in the (2) Voluntary dissolution
ratification within 30 days from adoption or ratification 2/3 of general membership voting in a meeting called for the
or amendment (Art. 248-A) purpose
4. List of members atleast once a year or whenever
required(Art.238-A)
Determination of Representation Status

Bargaining Agent
1. SEBA Certification
Legitimate labor union duly recognized or certified as the sole
2. Certification Election
and exclusive bargaining representative or agent of all
3. Consent Election
employees in a bargaining unit
4. Run-off Election
5. Re-run Election
When do labor unions acquire legal personality?
A. Independent Union / Federation / National Union / Trade
Union
Upon issuance of certificate of registration (2003 Bar)
EFFECT: Entitled to exercise rights and privileges of a legitimate
labor union

• When do labor unions acquire legal personality?


B. Local/Chartered Union

6
LABOR LAW II – Atty. Charisma Nolasco

Questions: relations. The exclusion from bargaining units of employees


who, in the normal course of their duties, become aware of
1. Give the characteristics of each category of employees, management policies relating to labor relations is a principal
and state whether the employees in each category may objective sought to be accomplished by the confidential
organize and form unions. Explain your answer. (5°/o) employee rule.

Under Article 255 [245] of the Labor Code the following are
provided: 3. What are the grounds for validly terminating the services of
Managerial employees are not eligible to join, assist or form an employee based on a just cause? 5%
any labor organization.
Supervisory employees shall not be eligible for membership in An employer may terminate an employment for any of the
the collective bargaining unit of the rank-and-file employees following causes:
but may join, assist or form separate collective bargaining units (a) Serious misconduct or willful disobedience by the
and/or legitimate labor organizations of their own. employee of the lawful orders of his employer or representative
The rank-and-file union and the supervisors’ union operating in connection with his work;
within the same establishment may join the same federation or (b) Gross and habitual neglect by the employee of his duties;
national union. (c) Fraud or willful breach by the employee of the trust reposed
in him by his employer or duly authorized representative;
2. May confidential employees who assist managerial (d) Commission of a crime or offense by the employee against
employees, and who act in a confidential capacity or have the person of his employer or any immediate member of his
access to confidential matters being handled by persons family or his duly authorized representatives; and
exercising managerial functions in the field of labor relations (e) Other causes analogous to the foregoing. (Art. 297 [282],
form, or assist, or join labor unions? Explain your answer. (2.5°/o) Labor Code)

No. In Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery


v. Asia Brewery, Inc., G.R. No. 162025, August 3, 2010, the High 4. Give the procedure to be observed for validly terminating
Court explained, who are those confidential employees the services of an employee based on a just cause? 5%
covered by the prohibition to join, form and assist any labor
organization under Article 245 [now 255] of the Labor Code, as As defined in Article 297 of the Labor Code, as amended, the
follows: requirement of two written notices served on the employee shall
Confidential employees are defined as those who (1) assist or observe the following:
act in a confidential capacity, (2) to persons who formulate,
(a) The first written notice should contain:
determine, and effectuate management policies in the field of
labor relations. The two (2) criteria are cumulative, and both 1. The specific causes or grounds for termination as provided for
must be met if an employee is to be considered a confidential under Article 297 of the Labor Code, as amended, and company
employee that is, the confidential relationship must exist policies, if any;
between the employee and his supervisor, and the supervisor
must handle the prescribed responsibilities relating to labor

7
LABOR LAW II – Atty. Charisma Nolasco

2. Detailed narration of the facts and circumstances that will serve 5. The modes of determining the exclusive bargaining agent of
as basis for the charge against the employee. A general the employees in a business are: (a) voluntary recognition; (b)
description of the charge will not suffice; and certification election; and (c) consent election. Explain how
3. A directive that the employee is given opportunity to submit a they differ from one another. 5%
written explanation within a reasonable period.
“Reasonable period” should be construed as a period of at least Voluntary Recognition refers to the process by which a legitimate
five (5) calendar days from receipt of the notice to give the labor union is recognized by the employer as the exclusive
employee an opportunity to study the accusation, consult or be bargaining representative or agent in a bargaining unit, reported
represented by a lawyer or union officer, gather data and with the Regional Office in accordance with Rule VII, Section 2 of
evidence, and decide on the defenses against the complaint. these Rules. Certification Election” or Consent Election refers to
(Unilever v. Rivera, G.R. No. 201701, June 3, 2013; Section 12, the process of determining through secret ballot the sole and
DOLE Department Order 18-A) exclusive representative of the employees in an appropriate
bargaining unit for purposes of collective bargaining or
(b) After serving the first notice, the employer should afford the negotiation. A certification election is ordered by the Department,
employee ample opportunity to be heard and to defend while a consent election is voluntarily agreed upon by the parties,
himself/herself with the assistance of his/her representative if with or without the intervention by the Department. (Rule I,
he/she so desires, as provided in Article 299 (b) of the Labor Section 1, Book V, Rules to Implement the Labor Code)
Code, as amended.
“Ample opportunity to be heard” means any meaningful
opportunity (verbal or written) given to the employee to answer 6. State the jurisdiction of the Voluntary Arbitrator, or Panel of
the charges against him/her and submit evidence in support of Voluntary Arbitrators in labor disputes? (4°/o) {ii2-VIEW-U}
his/her defense, whether in a hearing, conference or some other
fair, just and reasonable way. A formal hearing or conference The voluntary arbitrator or panel of voluntary arbitrators shall
becomes mandatory only when requested by the employee in have exclusive and original jurisdiction to hear and decide all
writing or substantial evidentiary disputes exist or a company rule unresolved grievances arising from:
or practice requires it, or when similar circumstances justify it. 1. The implementation or interpretation of the collective
(Perez v. PT&T, G.R. No. 152048, April 7, 2009, Section 12, bargaining agreements; (Article 274 [261], Labor Code, Section
DOLE Department Order 18-A) 4, Rule XIX, Book V, Omnibus Rules Implementing the Labor
(c) After determining that termination of employment is justified, Code)
the employer shall serve the employee a written notice of 2. The interpretation or enforcement of company personnel
termination indicating that: (1) all circumstances involving the policies which remain unresolved after exhaustion of the
charge against the employee have been considered; and (2) the grievance procedure; (Article 274 [261], Labor Code, Section
grounds have been established to justify the severance of their 4, Rule XIX, Book V, Omnibus Rules Implementing the Labor
employment. Code)
3. Wage distortion issues arising from the application of any
The foregoing notices shall be served personally to the employee
wage orders in organized establishments; (par. 4, Article 124,
or to the employee’s last known address. (Section 5, 5.1, Rule I-
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules
A, D.O. No. 147-15, Series of 2015)
Implementing the Labor Code)

8
LABOR LAW II – Atty. Charisma Nolasco

4. The interpretation and implementation of the productivity social justice principles of labor law outweigh or render
incentive programs under RA 6971. inapplicable the civil law doctrine of unjust enrichment.
5. Upon agreement of the parties, shall also hear and decide
all other labor disputes including unfair labor practices and
bargaining deadlocks. (Article 275. [262], Labor Code, Section 8. Rosa was granted vacation leave by her employer to spend
4, Rule XIX, Book V, Omnibus Rules Implementing the Labor three weeks in Africa with her family. Prior to her departure, the
Code) General Manager of the company requested her to visit the
6. Violations of a Collective Bargaining Agreement, except plant of a client of the company in Zimbabwe in order to
those which are gross in character, shall no longer be treated derive best manufacturing practices useful to the company.
as unfair labor practice and shall be resolved as grievances She accepted the request because the errand would be
under the Collective Bargaining Agreement; (Article 274. [261], important to the company and Zimbabwe was anyway in her
Labor Code) itinerary. It appears that she contracted a serious disease
during the trip. Upon her return, she filed a claim for
compensation, insisting that she had contracted the disease
7. Juanito initiated a case for illegal dismissal against Mandarin while serving the interest of her employer. Under the Labor
Company. The Labor Arbiter decided in his favor~ and ordered Code, the sickness or death of an employee, to be
his immediate reinstatement with full backwages and without compensable, must have resulted from an illness either
loss of seniority and other benefits. Mandarin Company did not definitely accepted as an occupational disease by the
like to allow him back in its premises to prevent him from Employees' Compensation Commission, or caused by
influencing his co-workers to move against the interest of the employment subject to proof that the risk of contracting the
company; hence, it directed his payroll reinstatement and same is increased by working conditions. Is the serious disease
paid his full backwages and other benefits even as it Rosa contracted during her trip to Africa compensable?
appealed to the NLRC. A few months later, the NLRC reversed Explain your answer. 2.5%
the ruling of the Labor Arbiter and declared that Juanito's
dismissal was valid. The reversal ultimately became final. May In Government Service Insurance System vs. Besitan, G.R. No.
Mandarin Company recover the backwages and other 178901, November 23, 2011, explained the concept of
benefits paid to Juanito pursuant to the decision of the Labor increased theory as follows:
Arbiter in view of the reversal by the NLRC? Rule, with reasons. Corollarily, for the sickness or resulting disability or death to be
(2.5%) compensable, the claimant must prove either (1) that the
employee’s sickness was the result of an occupational disease
Mandarin Company cannot recover the backwages and listed under Annex “A” of the Amended Rules on Employees’
other benefits paid to Juanito pursuant to the decision of the Compensation, or (2) that the risk of contracting the disease
Labor Arbiter despite the reversal by the NLRC. The refund was increased by his working conditions.
doctrine has already been reversed in Garcia v. Philippine Certainty is not required only probability
Airlines, Inc., G. R. No. 164856, July 20, 2009, where the Supreme Under the increased risk theory, there must be a reasonable
Court then stressed that as opposed to the abovementioned proof that the employee’s working condition increased his risk
Genuino v. National Labor Relations Commission, G.R. Nos. of contracting the disease, or that there is a connection
142732-33 & 142753-54, December 4, 2007, 539 SCRA 342 the between his work and the cause of the disease. (Castor-

9
LABOR LAW II – Atty. Charisma Nolasco

Garupa v. Employees’ Compensation Commission, G.R. No. The illegal stoppage of work by way of sympathetic strike has
158268, April 12, 2006, 487 SCRA 171, 180) Only a reasonable been settled in the case of Biflex Phils. Labor Union (NAFLU) v.
proof of work-connection, not direct causal relation, however, Filflex Industrial and Manufacturing Cororation, G.R. No.
is required to establish compensability of a non-occupational 155679, 19 December 2006, where it was ruled that stoppage
disease. (Government Service Insurance System v. Cordero, of work due to welga ng bayan is in the nature of a general
G.R. Nos. 171378 & 171388, March 17, 2009, 581 SCRA 633, 640) strike, an extended sympathy strike. It affects numerous
Probability, and not certainty, is the yardstick in compensation employers including those who do not have a dispute with
proceedings; thus, any doubt should be interpreted in favor of their employees regarding their terms and conditions of
the employees for whom social legislations, like PD No. 626, employment.Employees who have no labor dispute with their
were enacted. (Government Service Insurance System v. employer but who, on a day they are scheduled to work,
Corrales, G.R. No. 166261, June 27, 2008, 556 SCRA 230, 243- refuse to work and instead join a welga ng bayan commit an
244) illegal work stoppage. Even if petitioners joining the welga ng
Applying the above ruling, Rosa must present a reasonable bayan were considered merely as an exercise of their freedom
proof that her working condition increased his risk of of expression, freedom of assembly or freedom to petition the
contracting the disease, or that there is a connection between government for redress of grievances, the exercise of such
his work and the cause of the disease otherwise the same is rights is not absolute. For the protection of other significant
not compensable. state interests such as the right of enterprises to reasonable
returns on investments, and to expansion and growth
enshrined in the 1987 Constitution must also be considered,
9. A. Given that the liability for an illegal strike is individual, not otherwise, oppression or self-destruction of capital in order to
collective, state when the participating union officers and promote the interests of labor would be sanctioned. And it
members may be terminated from employment because of would give imprimatur to workers joining demonstrations/rallies
the illegal strike. Explain your answer. (4%) even before affording the employer an opportunity to make
the necessary arrangements to counteract the implications of
SUGGESTED ANSWER: the work stoppage on the business, and ignore the novel
The following are the effects of participation in an illegal strike principle of shared responsibility between workers and
and commission of illegal acts during strike: employers aimed at fostering industrial peace. There being no
1. Any union officer who knowingly participates in an illegal showing that petitioners notified respondents of their intention,
strike; and or that they were allowed by respondents, to join the welga ng
2. Any worker or union officer who knowingly participates in the bayan on October 24, 1990, their work stoppage is beyond
commission of illegal acts during a strike may be declared to legal protection.
have lost his employment status; (Third paragraph, Article 279
(a) [264 (a)], Labor Code)
10. Due to business recession, Ballistic Company retrenched a
B. A sympathetic strike is stoppage of work to make common part of its workforce. Opposing the retrenchment, some of the
cause with other strikers in another establishment or business. Is affected employees staged a strike. Eventually, the
the sympathetic strike valid? Explain your answer. (1°k) retrenchment was found to be justified, and the strike was
declared illegal; hence, the leaders of the strike, including the

10
LABOR LAW II – Atty. Charisma Nolasco

retrenched employees, were declared to have lost their b. After a conference called by the Office of the Secretary of
employment status. Are the striking retrenched employees still Labor and Employment on the propriety of the issuance of the
entitled to separation pay under Sec. 298 (283) of the Labor Assumption or Certification Order, motu proprio or upon a
Code despite the illegality of their strike? Explain your answer. request or petition by either party to the labor dispute. In the
(2%) said conference. the parties shall also be encouraged to
amicably settle the dispute. (Section 2, Operational Guidelines
The strikers including the union officers should be paid their of Department Order No. 40-G-03, Series of 2010, dated
separation pay by virtue of retrenchment notwithstanding the February 24, 2011)
illegal strike was declared illegal. The issue on entitlement to
separation pay due to authorized cause and the ground for B. What are the consequences of the assumption of jurisdiction
termination due to knowingly participating in illegal strike are by the Secretary of Labor, and of the disobedience to the
distinct and different. return to work? Explain your answer. (2.5%)
The consequences of assumption of jurisdiction are as follows:
a. If a strike or lockout has not taken place, the parties are
11. enjoined to conduct any untoward action that may lead to a
A. Pursuant to his power under Sec. 278(g) (263(g)) of the strike or lockout.
Labor Code, the Secretary of Labor assumed jurisdiction over b. if a strike or lockout has already taken place, all striking and
the 3-day old strike in Armor Steel Plates, Inc., one of the locked out workers shall, within twenty-four (24) hours from
country's bigger manufacturers of steel plates, and ordered all receipt of an Assumption or Certification Order, immediately
the striking employees to return to work. The striking employees return to work and the employer shall immediately resume
ignored the order to return to work. (a) What conditions may operations and readmit all workers under the same terms and
justify the Secretary of Labor to assume jurisdiction? (2.5°k) (b) conditions prevailing before the strike.
What are the consequences of the assumption of jurisdiction c. At any point in time, the parties are not prevented from
by the Secretary of Labor, and of the disobedience to the submitting the dispute to Voluntary Arbitration with the
return to work? Explain your answer. (2.5%) Secretary of Labor and Employment or his/her duly authorized
representative as Voluntary Arbitrator or Panel of Voluntary
Pursuant to Article 263 (g) [now 278 (g)], when a labor dispute Arbitrators. (Section 3, Operational Guidelines of Department
causes or is likely to cause a strike or lockout in an industry Order No. 40-G-03, Series of 2010, dated February 24, 2011)
indispensable to the national interest, the Secretary of Labor While the consequence of disobedience to the return to work
and Employment may assume jurisdiction over the dispute and has been ruled in the case of Manila Hotel Employees
decide it or certify the same to the National Labor Relations Association v. Manila Hotel Corporation, G.R. No. 154591,
Commission (NLRC) for compulsory arbitration. (Section 1, March 5, 2007. In holding that defiance of the assumption
Operational Guidelines of Department Order No. 40-G-03, order or a return-to work order by a striking employee, whether
Series of 2010, dated February 24, 2011) a union officer or a member, is an illegal act and, therefore, a
For a valid exercise of the assumption of jurisdiction authority, valid ground for loss of employment status. The High Court
any of the following conditions must be present: explained:
a. Both parties have requested the Secretary of Labor and The law explicitly prohibits such acts.
Employment to assume jurisdiction over the labor dispute; or ART. 263. STRIKES, PICKETING, AND LOCKOUTS

11
LABOR LAW II – Atty. Charisma Nolasco

x x x x (omitted) employees and the job description of the supervisors. It argued


ART. 264. PROHIBITED ACTIVITIES that if 30 is deducted from 70, it gives a balance of 40 valid
(a) x x x x signatures which is way below the minimum number of 50
(omitted) signatories needed to meet the alleged 25% requirement. If
you are the Director of Labor Relations, will you approve the
More to the point, the Court has consistently ruled in a long line holding of a Certification Election. Explain your answer. (5%)
of cases spanning several decades that once the SOLE
assumes jurisdiction over a labor dispute, such jurisdiction 14. Dion is an Accounting Supervisor in a trading company. He
should not be interfered with by the application of the has rendered exemplary service to the company for 20 years.
coercive processes of a strike or lockout. Defiance of the His co-employee and kumpadre, Mac, called him over the
assumption order or a return-to work order by a striking phone and requested him to punch his (Mac's) daily time card
employee, whether a union officer or a member, is an illegal as he (Mac) was caught in a monstrous traffic jam. Dion
act and, therefore, a valid ground for loss of employment acceded to Mac's request but was later caught by the
status. (Grand Boulevard Hotel v. Genuine Labor Organization Personnel Manager while punching. Mac's time card. The
of Workers in Hotel, Restaurant and Allied Industries company terminated the employment of Dion on the ground
(GLOWHRAIN), G.R. No. 153664, 18 July 2003, 406 SCRA 688, of misconduct. Is the dismissal valid and just? Explain. (5%)
710; Telefunken Semiconductors Employees Union-FFW v. Court
of Appeals, G.R. Nos. 143013-14, 18 December 2000, 348 SCRA 15. Amaya was employed as a staff nurse by St. Francis
565, 582; Federation of Free Workers v. Inciong, G.R. No. 49983, Hospital (SFH) on July 8, 2014 on a probationary status for six (6)
20 April 1982, 208 SCRA 157, 165) months. Her probationary contract required, among others,
strict compliance with SFH's Code of Discipline. On October 16,
2014, Dr. Ligaya, filed a Complaint with the SFH Board of
12. Marciano was hired as Chief Engineer on board the vessel Trustees against Amaya for uttering slanderous remarks against
MN Australia. His contract of employment was for nine months. the former. Attached to the complaint was a letter of Minda,
After nine months, he was re-hired. He was hired a third time mother of a patient, who confirmed the following remarks
after another nine months. He now claims entitlement to the against Dr. Ligaya: "Bakit si Dr. Ligaya pa ang napili mong
benefits of a regular employee based on his having performed 'pedia' eh ang tandatanda na n'un? E makakalimutin na yun
tasks usually necessary and desirable to the employer's xx x Alam mo ba, kahit wala namang diperensya yung baby,
business for a continuous period of more than one year. Is ipinapa-iso/ate nya?" The SFH President asks you, being the
Marciano's claim tenable? Explain your answer. (3%) hospital's counsel, which of these two (2) options is the legal
and proper way of terminating A maya: a) terminate her
13. Lazaro, an engineer, organized a union in Garantisado for a just cause under Article 288 of the Labor Code
Construction Corporation (Garantisado) which has 200 (Termination by Employer); or b) terminate her for violating her
employees. He immediately filed a Petition for Certification probationary contract. Explain. ( 5%)
Election, attaching thereto the signatures of 70 employees.
Garantisado vehemently opposed the petition, alleging that 16.
25 signatories are probationary employees, while 5 are
supervisors. It submitted the contracts of the 25 probationary

12
LABOR LAW II – Atty. Charisma Nolasco

13