LABOR LAW REVIEW
REVIEWER FOR FINALS 2019
QUIZ 1
PART I
TRUE or FALSE. Answer TRUE or FALSE. Correct your
answer if you answer False. Each letter is 1%.
a) Members of cooperatives have the right to
join form or assist a labor organization.
 FALSE. Only employees who are not members of
the cooperatives have the right to form or assist a
labor organization.
b) Employees of job contractors can bargain
with the principal for better terms and conditions of
work?
 FALSE. No employer-employee relationship
between the principal and the employees of Job
Contractors.
c) An Employee is eligible for membership in
any labor organization only upon regulation.
 FALSE. Eligible on the first day of
employment.
d) A newly established company whose
operations are not fully efficient is called a
Disorganized Establishment.
 FALSE. Unorganized Establishment.
e) The negotiating union can charge Principal
fee from its non members.
 FALSE. May be assessed a reasonable fee
equivalent to the dues and other fees paid by
members of the recognized collective bargaining
agent, if such non union members accept the
benefits under the collective bargaining
agreement.
f) A non-bargaining union member is required
to accept the benefits of the CBA.
 FALSE. No law that compels a non bargaining
union member to accept the benefits provided in
CBA. Freedom to choose whether to accept or
reject benefits.
g) Union may interfere with, restrain or coerce
employees in the exercise of their right to Self
Organization.
 FALSE. May restrain or coerce, not including
interference
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h) The maximum term of a Collective
Bargaining Agreement is 4 years.
 FALSE. 5 years
i) Acknowledgement of the CBA by the
majority of workers will be binding on all the
employees.
 FALSE. Ratification
j) During the Freedom Period, the parties can
immediately terminate, alter or modify the CBA.
 FALSE. Parties can seek termination or
modification only of the CBA
k) During the Freedom Period, the minority
status of the bargaining agent may be challenged by
another union.
 FALSE. Majority status of the incumbent
collective bargaining agent.
l) The Bargaining union can excessively bloat
his their demands since it knows that the company will
bargain anyways.
 FALSE. It’s a violation of duty to bargain.
Otherwise known as blue sky bargaining wherein
the proposal is unreasonable or impossible to
meet.
m) Violation of a CBA is considered unfair labor
practice.
 FALSE. Mere violation will not constitute ULP; the
violation must be gross in character, which means
flagrant and or malicious refusal to comply with
the economic provisions.
n) Automatic Termination Clause will be in
effect once the CBA term ends despite stalemate in
negotiations.
 FALSE. Automatic Renewal Clause.
o) The No Strike, No Lock out Clause in the
CBA completely prohibits strike on all issues.
 FALSE. Only for collective Bargaining Deadlock
and Unfair Labor Practice.
p) In 30 days, you can negotiate for the
economic conditions in a CBA?
 FALSE. After first 3 years of the 5 yrs lifetime of
CBA
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 LABOR LAW REVIEW
REVIEWER FOR FINALS 2019
q) The DOLE Secretary implements the policy
of co-determination in the Constitution.
 FALSE. Implements rules and regulations to
participate in the policy of co-determination.
r) “Picketing” is the act of workers in sitting
down in an establishment involved in a labor
dispute generally accompanied by the carrying and
display of signs, placards and banners.
 FALSE. Peacefully marching to and fro before the
premises of an establishment
s) In case of defiance of a RTW Order, only the
officers can be dismissed.
 FALSE. Also members may be dismissed
t) Regular courts can issue restraining order
or injunction against strikes or Lock out.
 FALSE. The Secretary of Labor and Employment
and the NLRC only as the case may be.
PART II
2. The employees have the right to participate in policy
and decision making in companies where they are
employed. Describe its scope and limitations. 4%
 ART 267 of LC. The right of the employees of
the employees to participate in policy and decision
making is confined only to processes that directly
affect their rights, benefits, and welfare. It does
not extend to matters pertaining to:
1. business operations or management of the
business;
2. provisions of the collective bargaining agreement;
3. or traditional areas of collective bargaining.
3. A new Company wanted to come up with a Code of
Discipline. The company union demanded that they
given the chance to review and discuss the
contentious provisions. The company ignored the
union and released its own version of the Code of
Discipline. Is the company correct? 3%
 No, as held in the case of Philippine Airlines,
Inc. v. NLRC, the Company should share with
the union or its employees its prerogative of
formulating the code of discipline, because the
provisions of the code of discipline clearly have
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repercussions on the employees’ right to security
of tenure.
4. Among the 4 Criteria for Fixing the Appropriate
Bargaining Unit, which criteria is common in Philippine
setting? 2% Cite a Supreme Court case applying those
criteria. 2%
 The criterion that is common is the Similarity of
Employment Status Rule. Under this rule, the
main consideration in fixing the appropriate
collective bargaining unit is the status of
employment. The rule requires that non-regular
employee be treated separately from regular
employees.
This criterion was applied in the case of PLASLU v.
CIR which the court held that the challenged
voters were non regular employees, they cannot
be considered to have such mutuality of interest
as to justify their inclusion in a bargaining unit
composed of regular employees.
5. What are the 2 means to become a Collective
Bargaining Agent? 1%
1. Through SEBA (Sole and Exclusive Bargaining
Agent)
2. Through Certification Election (including consent
election and run-off election)
6. There are 100 employees of a newly established
company. 10 employees filed for a certification
election. The DOLE issued an Order granting the
conduct of a certification election. Can the Company
appeal the Order? On the other hand, if the DOLE
dismissed the Petition, can the 10 employees file an
Appeal? 3%
 In unorganized establishment, an Order granting
the conduct of a certification election is not
appealable. Any issue arising therefrom may be
raised by means of protest on the conduct and
results of the Certification election.
However, an Order dismissing the petition is
appealable to the Office of the Secretary of Labor
and Employment within 10 days from receipt
thereof.
7. When to file a Petition for Certification Election in
Organized Establishments? 2%
 During the freedom period. 60 days prior to the
expiration of the CBA
8. What are the 8 grounds to file your Motion to Dismiss
the petition for Certification Election? 4%
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LABOR LAW REVIEW
REVIEWER FOR FINALS 2019

3. Violation of duty to bargain collectively

1. Lack of EE Between the company and the
members of petitioning union
2. Lack of legitimacy on the part of the
petitioning union 11. KESO ICE CREAM just ignored the proposals of the
3. Lack of written consent of 25% of the bargaining unit. Union got furious. They filed a case at
employees within the bargaining unit SC. Pls give your legal advice. 3%
4. The bargaining sought to be represented is
not an appropriate bargaining unit  Refusal of the employer to give counter proposal
5. The petition was filed within 1 year from is a violation of his duty to bargain and thus
issuance of SEBA Certification or from actual constitutes unfair labor practice. Proposals and
valid certification election, consent election or counter proposals are necessary and mandatory in
run-off election negotiations.
6. The petition is barred by the duly registered  Although the union has cause of action against
CBA, by the ongoing CBA Nego commenced the employer, it cannot immediately resort that
within 1 yr from certification as bargaining matter to SC, they can conduct strike on the basis
agent; or by the bargaining deadlock which is of ULP instead.
under conciliation, arbitration, or the subject
ofa valid notice of strike or lockout 12. The modes of determining an exclusive bargaining
7. Failure of local chapter or federation to agreement are: voluntary recognition; certification
submit the charter certificate upon filing of election and consent election. Explain briefly how they
the petition differ from one another. 3%
8. Failure of petitioner to appear for 2
consecutive scheduled conferences before the  Voluntary Recognition refers to the process by
Med-Arbiter despite notice which a legitimate labor union is voluntarily
recognized by the employer as the exclusive
9. Just Enumerate at Least 5 modes of determining the bargaining representative or agent in a
sole and exclusive bargaining agent? 2.5% bargaining unit and reported as such with the
Regional Office in accordance with the Rules to
1. Voluntary Recognition Implement the Labor Code. It is proper only in
2. Certification election cases where there is only one legitimate
3. Consent election labor organization existing and operating in
4. Run-off election a bargaining unit.
5. Re-run election
 Certification election refers to the process of
10. a. Define unfair Labor Practice 1%; determining through secret ballot the sole and
exclusive bargaining agent of the employees in an
 ULP refers to those acts listed in Articles 259 and appropriate bargaining unit for purposes of
260 of the Labor Code collective bargaining or negotiations.
Certification election is one which is ordered
b. Give three (3) examples of unfair labor practices on by the DOLE.
the part of the employer 1.5% and three (3)
examples of unfair labor practices on the part of the  Consent election is one mutually agreed upon
labor union. 1.5% by the parties, with or without the
intervention of the DOLE, its purpose being
ER: merely to determine the issue of majority
1. interfere with, restrain or coerce representation of all the workers in an appropriate
employees in the exercise of their right collective bargaining unit.
to self organization
2. Requiring an employee not to join a 13. Arnold Clavio organized a union in GMA 7 which has
union or resign from the union 200 employees. He immediately filed a Petition for
3. Contracting out services or functions Certification Election, attaching thereto the signatures
being performed by union members of 70 employees. GMA 7 vehemently opposed the
petition, alleging that 25 signatories are probationary
EE: employees, while 5 are supervisors. It submitted the
contracts of the 25 probationary employees and the
1. Restraining or coercing employees in the exercise job description of the supervisors. It argued that if 30
of their right to s.o is deducted from 70, it gives a balance of 40 valid
2. Causing an employer to discriminate against an signatures which is way below the minimum number of
employee 50 signatories needed to meet the alleged 25%
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LABOR LAW REVIEW
REVIEWER FOR FINALS 2019
requirement. If you are the Director of Labor
Relations, will you approve the holding of a
Certification Election? Explain your answer. 3%
SUGGESTED ANSWER: (BAR 2016)
 Yes, I will allow the certification election. What is
required for a certification election is that at least
25 per cent of the bargaining unit must sign the
petition. Since 25 percent of 200 is 50 then the
fact that there were 70 signatories who signed
means that it should be allowed. Note that out of
the 70 signatories only the supervisors should be
excluded. Article 254 of the Labor Code allows
supervisory employees to form, join, or assist
separate labor organizations but they are not
eligible for membership in a Labor organization of
the rank-and-file. Thus, they are the only ones
that should be disqualified. As to the probationary
employees, they should be included. The fact that
an employee is given a classification such as
beginner, trainee, or probationary employee,
and the fact that contemplation of permanent
tenure is subject to satisfactory completion of an
initial trial period, are insufficient to warrant such
employees' exclusion from a bargaining unit.
Moreover the eligibility of probationary employees
does not turn on the proportion of such employee
who, willingly or not, fails to continue to work for
the employer throughout the trial period.
ALTERNATIVE ANSWER:
 Yes, I will allow the certification election.
Following the Bystander Rule, the role of the
employer in certification elections is that of a mere
bystander; it has no right or material interest to
assail the certification election. Thus, its
opposition to the certification election must not be
given credence.
The only exception to this rule is where the
employer has to file the petition for certification
election pursuant to Article 270 of the Labor Code
because it was requested to bargain collectively;
such exception does not apply in this case.
14. Aguila Glass had 600 rank-and-file employees.
Three rival unions – A, B, and C participated in the
certification elections ordered by the Med-Arbiter.
500 employees voted. The unions obtained the
following votes: A-200; B-150; C-50; 90
employees voted “no union”; and 10 were
segregated votes. Out of the segregated votes,
four (4) were cast by probationary employees and
six (6) were cast by dismissed employees whose
respective cases are still on appeal. (5%)
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(A) Should the votes of the probationary
and dismissed employees be counted in the
total votes cast for the purpose of
determining the winning labor union?
SUGGESTED ANSWER: (2014 BAR)
Yes. Rule IX, Section 5 of DOLE Department Order
40-03 provides that “[a]ll employees who are
members of the appropriate bargaining unit
sought to be represented by the petitioner at the
time of the issuance of the order granting the
conduct of a certification election shall be eligible
to vote. An employee who has been dismissed
from work but has contested the legality of the
dismissal in a forum of appropriate jurisdiction at
the time of the issuance of the order for the
conduct of a certification election shall be
considered a qualified voter, unless his/her
dismissal was declared valid in a final judgment at
the time of the conduct of the certification
election.”
(B) Was there a valid election?
SUGGESTED ANSWER:
Yes. To have a valid election, at least a majority of
all eligible voters in the unit must have cast their
votes (Article 256, now Article 266, of the Labor
Code). In the instant case, 500 out of 600 rank-
and-file employees voted.
(C) Should Union A be declared the winner?
SUGGESTED ANSWER:
No. The Labor Code provides that the Labor Union
receiving the majority of the valid votes cast shall
be certified as the exclusive bargaining agent of
all the workers in the unit (Article 256, now Article
266, of the Labor Code). Here, the number of
valid votes cast is 490; thus, the winning union
should receive at least 246 votes. Union A only
received 200 votes.
(D) Suppose the election is declared invalid,
which of the contending unions should
represent the rank-and-file employees?
SUGGESTED ANSWER:
None of the participating unions can represent the
rank-and-file employees for purposes of collective
bargaining because none of them enjoys majority
representative status. (Article 255, now Article
265, of the Labor Code).
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LABOR LAW REVIEW
REVIEWER FOR FINALS 2019
(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?
SUGGESTED ANSWER:
Yes. The Labor Code provides that the Labor
Union receiving the majority of the valid votes
cast shall be certified as the exclusive bargaining
agent of all the workers in the unit (Article 256,
now Article 266, of the Labor Code). Here, the
number of valid votes cast is 490. Thus, the
winning union should receive at least 246 votes;
Union A received 250 votes.
15. Leave credits in the CBA total to 30 days. New Owner
requested the union to reduce the leave credits to just
25 days due to low sales. Can the parties agree? 3%
 Yes, provided that re-negotiation of all provisions
other than the representation aspect of the CBA
should be made after first 3 years from effectivity.
Considering that the 5 year period is quite long
during which the economic situations of the
parties may have already changed, Art. 253-A
recognizes the need for the parties to re-assess
and re-negotiate all the provisions of the CBA,
except its representation aspect, after the lapse of
the first 3 years of its 5 year lifetime.
16. Identify the 5 types of Union Security Agreements.
2.5%
1. Closed Shop
2. Union Shop
3. Maintenance of Membership
4. Preferential Hiring
5. Agency Shop
17. Pablito works as a driver at the National Travel
Company (NTC). He is a member of the Samahan ng
Manggagawa sa NTC, the exclusive rank-and-file
collective bargaining representative in the company.
The union has a CBA with NTC which contains a union
security and a check-off clause. The union security
clause contains maintenance of membership provision
that requires all members of the bargaining unit to
maintain their member-ship in good standing with the
union during the term of the CBA under pain of
dismissal. The check-off clause on the other hand
authorizes the company to deduct from union
members' salaries defined amounts of union dues and
other fees. Pablito refused to issue an authorization to
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the company for the check-off of his dues, maintaining
that he will personally remit his dues to the union.
(a) Would the NTC management commit unfair
labor practice if it desists from checking off Pablito's
union dues for lack of individual authorization from
Pablo? 2%
SUGGESTED ANSWER: (2013 BAR)
No. Under Article 9481, violation of the Collective
Bargaining Agreement, to be an unfair labor practice, must
be gross in character. It must be a flagrant and malicious
refusal to comply with the economic provisions of the CBA.
SUGGESTED ALTERNATIVE ANSWER:
No. Check-offs in the truth impose an extra burden on the
employer in the form of additional administrative and
bookkeeping costs. It is a burden assumed by management
at the instance of the union and for its benefit, in order to
facilitate the collection of dues necessary for the latter’s life
and sustenance. But the obligation to pay union dues and
agency fees obviously devolves not upon the employer, but
the individual employee. It is a personal obligation not
demandable from the employer upon default or refusal of
the employee to consent to a check-off. The only obligation
of the employer under a check-off is to effect the
deductions and remit the collections to the union. (Holy
Cross of Davao College v. Joaquin, G.R. No. 110007
[1996])
(b) Can the union charge Pablito with disloyalty for
refusing to allow the check off of his union dues
and, on this basis, ask the company to dismiss him
from employment? 2%
SUGGESTED ANSWER:
No. The “check-off clause” in the CBA will not suffice. The
law prohibits interference with the disposition of one’s
salary. The law requires “individual written authorization”
to deduct union dues from Pablo’s salaries. For as long as
he pays union dues, Pablo cannot be terminated from
employment under the union security clause. As a matter
of fact, filing a complaint against the union before the
Department of Labor for forcible deduction from salaries
does not constitute acts of disloyalty against the union.
(Tolentino v. Angeles, 52 O.G. 4262)
18. What are the 3 courses of Action in case of deadlock in
Collective bargaining Negotations? 1.5%
1. Bring the matter to the National Conciliation and
Mediation Board (NCMB) for conciliation and
mediation.
2. Submit the matter for arbitration
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LABOR LAW REVIEW
REVIEWER FOR FINALS 2019
3. Declare a strike or lock out
19. The union of 7th Day Adventist Hospital and the
Hospital encountered CBA negotiation deadlock. The
Union members abandoned the hospital and staged a
strike.
a) Rule on the action of the union members. 2%
 The action of the union members is valid exercise
of its right to strike. However, strike in hospitals,
clinics and similar institutions are strongly
discouraged because of their effects in the life and
health of patients.
b) What is the legal remedy of the Hospital? 2%
 Employer may withhold the wages of employees
conducting strikes on the basis of the fair day’s
wage for a fair day’s labor.
c) Can the DOLE Secretary intervene? 2%
 Yes, the Labor Code provides under Art. 278
provides that in labor disputes adversely affecting
the continued operation of such hospitals, clinics
or medical institutions, it shall be the duty of the
striking union to provide and maintain an effective
skeletal force of medical and other health
personnel, whose movement and services shall be
unhampered and unrestricted, as are necessary to
insure the proper and adequate protection of the
life and health of its patients, most especially
emergency cases, for the duration of the strike or
lockout. In such cases, therefore, the Secretary of
Labor and Employment may immediately assume,
within 24 hours from knowledge of the occurrence
of such strike or lockout, jurisdiction over the
same or certify it to the Commission for
compulsory arbitration.
d) If the union defies the order of the Dole
Secretary, what will be the consequence to the
officers and members of the union? 2%
 In the case of St. Scholastica’s college v. Torres,
by defying the orders of the DOLE Secretary, the
strikers are deemed to have lost their employment
status. They deemed to have abandoned their
jobs. It is in itself knowingly participating in an
illegal act. All strikers, whether union officers or
plain members, may be declared to have lost their
employment status. This is clear from the
provision of Art 279(a) of LC.
20. A deadlock in the negotiations for the collective
bargaining agreement between the School and the
Union prompted the latter, after duly notifying the
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DOLE, to declare a strike on October 17. The strike
totally paralyzed the operations of the school. The
Labor Secretary immediately assumed jurisdiction over
the dispute and issued on the same day (October 17)
a return to work order. Upon receipt of the order, the
striking union officers and members, on October 20,
filed a Motion for Reconsideration thereof questioning
the Labor Secretary’s assumption of jurisdiction, and
continued with the strike during the pendency of their
motion. On October 25, the Labor Secretary denied
the reconsideration of his return to work order and
further noting the strikers’ failure to immediately
return to work, terminated their employment. In
assailing the Labor Secretary’s decision, the Union
contends that:
(a) The Labor Secretary
erroneously assumed jurisdiction over the dispute since the
School could not be considered an industry indispensable
to national interest;
 No, the Labor Secretary correctly assumed
jurisdiction. The law does not define what an
“industry indispensable to the national interest” is.
It rather gives the Secretary the unlimited
discretion to determine what industries may be
considered as indispensable to the national
interest.
(b) The strikers were under no obligation to immediately
comply with the October 17 return to work order because
of their then pending Motion for Reconsideration of such
order;
 No, an assumption or certification order
automatically carries with it a returns to work
order even if the directive to return to work is not
expressly stated in the Order. Assumption or
Certification orders are immediately executor. The
strikers must return to work even if they filed a
motion for reconsideration.
(c) The strike being legal, the employment of the striking
Union officers and members cannot be terminated.
Rule on these contentions. Explain. 4.5%
 The employment status of the strikers subsists
during a strike. A strike is not a renunciation of
employment relation. While out on strike, the
strikers cannot be considered to have abandoned
their employment but rather have only ceased
from their labor.
21. There are 4 companies located inside an Industrial
Park in Cavite. The 1st Company is located near the
gate while the 4th Company is located farthest inside
the compound. A strike was conducted by the union
of the 1st Company. They blocked the gate entirely.
The 3 companies cannot then enter the gate. You
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LABOR LAW REVIEW
REVIEWER FOR FINALS 2019

were retained by the 3 companies for their legal rights. 2. Wage distortion disputes in organized
What would be your legal advice? 3% establishment
3. Disputes arising from interpretation and
 I will advice them to obtain an injunction order implementation of the productivity incentive
from NLRC. programs under RA 6971
4. Jurisdiction over other labor disputes such as
Obstructions in points of egress and ingress in termination disputes, complaints for ULP or
private properties during a labor dispute may be deadlock in collective bargaining negotiations, as
removed only in accordance with proper injunctive long as the parties expressly agree to submit the
order from the NLRC. They cannot be summarily matter to voluntary arbitration.
demolished by law enforcement authorities.

22. Conduct a legal research on the flow chart for Strikes

to be conducted by a Labor Union. Then print it and
attach the printed copy in the exam booklet. 3%

 attached QUIZ II
23. What are the 4 reasons why it is called the Freedom
I. Amaya was employed as a staff nurse by St. Francis
Period? 2%
Hospital (SFH) on July 8, 2014 on a probationary status for
six (6) months. Her probationary contract required, among
1. A union member can validly resign from the union
others, strict compliance with SFH's Code of Discipline.
2. A local union can disaffiliate from its mother
federation
On October 16, 2014, Dr. Ligaya, filed a Complaint with the
3. The majority status of the incumbent collective
SFH Board of Trustees against Amaya for uttering
bargaining agent can be challenged through a
slanderous remarks against the former. Attached to the
petition for certification election
complaint was a letter of Minda, mother of a patient, who
4. The parties can seek the termination or
confirmed the following remarks against Dr. Ligaya:
modification of the existing CBA
"Bakit si Dr. Ligaya pa ang napili mong 'pedia' eh ang
tandatanda na n'un? E makakalimutin na yun xx x
24. Enumerate the 4 mandatory provisions of the CBA.
Alam mo ba, kahit wala namang diperensya yung
2%
baby, ipinapa-iso/ate nya?"
1. Grievance Procedure
The SFH President asks you, being the hospital's counsel,
2. Voluntary Arbitration
which of these two (2) options is the legal and proper way
3. No Strike No Lock out Clause
of terminating Amaya:
4. Labor Management Council
a) terminate her for a just cause under Article
25. Define Grievance. 1%
282 of the Labor Code (Termination by Employer); or
b) terminate her for violating her probationary
 Grievance is a dispute or controversy between an
contract. Explain. (5%) 2016 Bar
employer and the collective bargaining agent,
individual employee or group of employees,
ANSWERS, SUGGESTED AND ALTERNATIVE
arising from interpretation or implementation of
the CBA or interpretation or enforcement of
1. I will advise the President of SFH to terminate
company personnel policies.
Amaya for violating her probationary contract.
Part and Parcel of the Standards of her
26. Define Voluntary Arbitration. 1%
employment is to strictly follow the Code of
Conduct of SFH. The act of defaming Dr. Ligaya is
 It is a system whereby the parties agree to refer
certainly a misdemeanor that is usually not
their dispute to an impartial third person for final
acceptable in any work environment. With such
and binding resolution.
attitude Amaya displayed, she cannot pass the
company standard of SFH. I will not suggest the
27. Enumerate the 4 jurisdictions of Voluntary Arbitrators.
dismissal of Amaya under Art. 282 (297
2%
renumbered). Though she displayed misconduct,
the same is not work related, as spreading a
1. Unresolved grievance arising from interpretation
rumor against a Doctor does not go into the
or implementation of a CBA or interpretation or
duties and responsibilities of a staff nurse.
enforcement of company personnel policies

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LABOR LAW REVIEW
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2. I will advise the President of SFH to terminate to file a leave of absence. She filed the said leave
Amaya for a just cause under Art. 282 (297 but was denied by Mariit Clothing Factory. Under
renumbered) in relation to Art. 281(now 296). The the present law, a pregnant worker is entitled to
Labor Code assigns a separate provision, Art. 296, go on maternity leave. She asked for leave of
and provides a different set of grounds for the absence only to be denied and yet she was
dismissal of probationary employees, to wit: terminated for absence without leave. This is an
act that flagrantly violates Tess' right which
translates to discrimination.
ARTICLE 296. PROBATIONARY
EMPLOYMENT. However, I do not agree with Tess' contention
that her pregnancy was treated as a form of
Probationay employment shall not exceed 6 disease. There is nothing to support this
months from the date the employee started contention.
working, unless it is covered by an apprenticeship
agreement stipulating a longer period. The 2. The position of Tess is meritorious. Art. 133 (2) of
services of an employee who has been engaged the Labor Code provides that it shall he Unlawful
on a probationary basis may be terminated for for any employer to discharge a woman on
a just cause or when he fails to qualify as a account of her pregnancy, or while on leave or in
regular employee in accordance with confinement due to her pregnancy. In the case at
reasonable standards made known by the hand, the dismissal of Tess was clearly on account
employer to the employee at the time of his of her absences related to her pregnancy.
engagement. An employee who is allowed to work
after a probationary period shall be considered a
III. Jim is the holder of a certificate of public convenience
regular employee.
for a jeepney. He entered into a contract of lease with
Nick, whereby they agreed that the lease period is for one
In the case of Pasamba v. NLRC, the court held
(1) year unless sooner terminated by Jim for any of the
that the law does not preclude the employer from
causes laid down in the contract. The rental is thirty
terminating the probationary employment, if the
thousand pesos (P30,000.00) monthly. All the expenses for
employer finds that the probationary employee is
the repair of the jeepney, together with expenses for
not qualified for regular employment. As long as
diesel, oil and service, shall be for the account of Nick. Nick
the termination was made for reasons provided
is required to make a deposit of three (3) months to
under Art. 296 of the Labor Code before the
answer for the restoration of the vehicle to its good
expiration of the 6 month probationary period, the
operating condition when the contract ends. It is stipulated
employer is well within its rights to sever the
that Nick is not an employee of Jim and he holds the latter
employer-employee relationship.
free and harmless from all suits or claims which may arise
from the implementation of the contract. Nick has the right
II. Tess, a seamstress at Marikit Clothing Factory, became
to use the jeepney at any hour of the day provided it is
pregnant. Because of morning sickness, she frequently
operated on the approved line of operation.
absented herself from work and often came to the factory
After five (5) months of the lease and payment of the
only four (4) days a week. After two (2) months, the
rentals, Nick became delinquent in the payment of the
personnel manager told her that her habitual absences
rentals for two (2) months. Jim, as authorized by the
rendered her practically useless to the company and, thus,
contract, sent a letter of demand rescinding the contract
asked her to resign. She begged to be retained, citing her
and asked for the arrearages. Nick responded by filing a
pregnancy as reason for her absences. Tess asked for
complaint with the NLRC for illegal dismissal, claiming that
leave of absence but her request was denied. She went on
the contract is illegal and he was just forced by Jim to sign
leave nevertheless. As a result, she was thus dismissed for
it so he can drive. He claims he is really a driver of Jim on
going on leave without permission of management.
a boundary system and the reason he was removed is
Tess filed a complaint for illegal dismissal. The company's
because he failed to pay the complete daily boundary , of
defense: she was legally dismissed because of her
one thousand (P1,000.00) for 2 months due to the increase
numerous absences without leave and not because of her
in the number of tricycles.
pregnancy. On the other hand, Tess argues that her
dismissal was an act of discrimination, based as it was on
[a] Jim files a motion to dismiss the NLRC case on
her pregnancy which the company treated as a disease.
the ground that the regular court has jurisdiction since the
Whose position is meritorious-the company's or Tess'?
agreement is a lease contract. Rule on the motion and
Explain. (5%) 2016 Bar
explain. (2.5%)
ANSWERS, SUGGESTED AND ALTERNATIVE
SUGGESTED ANSWER:
1. The position of Tess is meritorious because the
dismissal was based on the alleged failure of Tess
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 As held in the case of Martinez v. NLRC,(G.R. No.
117495, May 29,1997), following the doctrine in
that case it supports the denial of Jim's Motion to
Dismiss. Although Jim and Nick called their
contract as a lease, it is actually a contract of
employment, and the rentals that Nick must
pay to Jim is actually a boundary. Martinez v.
National Labor Relations Commission,(G.R. No.
117495, May 29,1997),
[b] Assuming that Nick is an employee of Jim, was
Nick validly dismissed? 2016 Bar
SUGGESTED ANSWER:
 Yes, for failure to remit five (5) months worth of
boundary, Nick apparently committed fraud
against Jim. In Cosmos Bottling Corporation v.
Fermin, G.R. No. 193676 and Fermin v. Cosmos
Bottling Corporation, (G.R. No. 194303, 20 June
2012), it was ruled that theft committed
against a co- employee is considered as a case
analogous to serious misconduct, for which the
penalty of dismissal from service may be meted
out to the erring employee.
IV. Lincoln was in the business of trading broadcast
equipment used by television and radio networks. He
employed Lionel as his agent. Subsequently, Lincoln set up
Liberty Communications to formally engage in the same
business. He requested Lionel to be one of the
incorporators and assigned to him 100 Liberty shares.
Lionel was also given the title Assistant Vice-President for
Sales and Head of Technical Coordination. After several
months, there were allegations that Lionel was engaged in
“under the table dealings” and received “confidential
commissions” from Liberty’s clients and suppliers. He was,
therefore, charged with serious misconduct and willful
breach of trust, and was given 48 hours to present his
explanation on the charges. Lionel was unable to comply
with the 48-hour deadline and was subsequently barred
from entering company premises. Lionel then filed a
complaint with the Labor Arbiter claiming constructive
dismissal. Among others, the company sought the dismissal
of the complaint alleging that the case involved an intra-
corporate controversy which was within the jurisdiction of
the Regional Trial Court (RTC).
If you were the Labor Arbiter assigned to the case, how
would you rule on the company’s motion to dismiss? (2014
Bar Question)
SUGGESTED ANSWER:
 I will deny the motion to dismiss. "Corporate
officers" in the context of Presidential Decree No.
902-A are those officers of the corporation who
are given that character by the Corporation Code
or by the corporation's by-laws. Section 25 of the
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Corporation Code enumerates three specific
officers that in law are considered as corporate
officers – the president, secretary and the
treasurer. Lincoln is not one of them. There is
likewise no showing that his position as Assistant
Vice-President is a corporate officer in the
company's by-laws. The Labor Arbiter therefore,
has jurisdiction over the case (Art. 217 (a) (2),
Labor Code).
V. 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? (2014 Bar Question)
SUGGESTED ANSWERS:
1. I will rule in favor of the employees. JKL factory
merely suspended its operations as a result of the
fire that gutted its factory. Article 286 of the Labor
Code states that an employer may bona fide
suspend the operation of its business for a period
not exceeding six (6) months. In such a case,
there would be no termination of the employment
of the employees, but only a temporary
displacement. Since, the suspension of work
lasted more than six months, there is now
constructive dismissal (Sebuguero v. NLRC, 245
SCRA 532 [1995]).
2. I will decide in favor of the employees.
The fire has not resulted in complete destruction
of employer-employee relationship. Said
relationship has temporarily ceased only. When
JKL resumed operations, therefore, it became its
obligation to recall its old employees instead of
replacing them with new employees.
Withholding of work beyond six (6) months
amounts to constructive dismissal. Hence, I will
order JKL to pay the complainants’ full backwages,
separation pay because their positions are
occupied already, nominal damages for non-
observance by JKL of prescribed pre-termination
procedure, moral and exemplary damages for its
bad faith (Lynvil Fishing Enterprises, Inc., et al.
vs. Ariola, et al., G.R. No. 181974,1 February
2012), and 10% attorney’s fees for compelling its
employees to litigate against it (Art. 111, LC).
VI. Karina Santos is a famous news anchor appearing
nightly in the country's most watched newscast. She is
surprised, after one newscast, to receive a notice of
hearing before the station's Vice-President for Human
Resources and calls the VP immediately to ask what was
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wrong. Karina is told over the phone that one of her crew
filed a complaint against her for verbal abuse and that
management is duty-bound to investigate and give her a
chance to air her side. Karina objects and denies that she
had ever verbally assaulted her crew. The VP then
informed her that pending the investigation she will be
placed on a 30-day preventive suspension without pay and
that she will not be allowed to appear in the newscast
during this time. Is the preventive suspension of Karina
valid? Discuss the reasons for your answer. (4%) 2015
Bar
SUGGESTED ANSWER:
 No. The preventive suspension of Karina is not
valid.
The employer may place an employee under
preventive suspension if his/her continued
employment would pose a serious and imminent
threat to the life or property of the employer or of
his/her co-employees. These requirements are not
present here.
VII. Rico has a temper and, in his work as Division
Manager of Matatag Insurance, frequently loses his temper
with his staff. One day, he physically assaults his staff
member by slapping him. The staff member sues him for
physical injuries. Matatag Insurance decides to terminate
Rico, after notice and hearing, on the ground of loss of
trust and confidence. Rico claims that he is entitled to the
presumption of innocence because he has not yet been
convicted. Comment on Matatag's action in relation to
Rico's argument. (4%) 2015 Bar
SUGGESTED ANSWER:
 Matatag Insurance does not have to await the
result of the criminal case before exercising its
prerogative to dismiss. Dismissal is not affected by
a criminal case. Under the Three-fold Liability
Rule, a single act may result in three liabilities,
two of which are criminal and administrative. To
establish them, the evidence of the crime must
amount to proof beyond reasonable doubt;
whereas, the evidence of the ground for dismissal
is substantial evidence only. In this regard, the
company has some basis already for withholding
the trust it has reposed on its manager. Hence,
Rico’s conviction need not precede the employee’s
dismissal.
VIII. Dion is an Accounting Supervisor in a trading
company. He has rendered exemplary service to the
company for 20 years. His co-employee and kumpadre,
Mac, called him over the phone and requested him to
punch his (Mac's) daily time card as he (Mac) was caught
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in a monstrous traffic jam. Dion acceded to Mac's request
but was later caught by the Personnel Manager while
punching. Mac's time card. The company terminated the
employment of Dion on the ground of misconduct. Is the
dismissal valid and just? Explain. (5%) 2016 Bar
ANSWER, SUGGESTED and ALTERNATIVE
1. Yes. The ground sustaining the dismissal
of Dion is serious misconduct. The act of Dion
in giving in to Mac’s request to punch the latter's
daily time card is a wrongful conduct, grave in
character and not merely trivial or unimportant.
The subject act involves dishonesty, and the
same portrays Dion's moral obliquity to make
it appear that Mac was working when actually
he is not. The fact that he has rendered 20 years
of service aggravates his sitnation because, by
the length of his service, he should be well-
aware that Mac must personally punch his daily
time card
2. No. Applying both 1he Proportionality Rule and
the 1st offense rule, dismissal was too harsh a
consequence for the actions of Dion. Absent a
showing that the action amounted to serious
misconduct, his length of service may be taken
as a mitigating factor in the penalty to be
imposed against him.
IX. Zienna Corporation (Zienna) informed the Department
of Labor and Employment Regional Director of the end of
its operations. To carry out the cessation, Zienna sent a
Letter Request for Intervention to the NLRC for permission
and guidance in effecting payment of separation benefits
for its fifty (50) terminated employees.
Each of the terminated employees executed a Quitclaim
and Release before Labor Arbiter Nocomora, to whom the
case was assigned. After the erstwhile employees received
their separation pay, the Labor Arbiter declared the labor
dispute dismissed with prejudice on the ground of
settlement. Thereafter, Zienna sold all of its assets to
Zandra Company (Zandra), which in tum hired its own
employees.
Nelle, one of the fifty (50) terminated employees, filed a
case for illegal dismissal against Zienna. She argued that
Zienna did not cease from operating since the corporation
subsists as Zandra. Nelle pointed out that aside from the
two companies having essentially the same equipment, the
managers and owners of Zandra and Zienna are likewise
one and the same.
For its part, Zienna countered that Nelle is barred from
filing a complaint for illegal dismissal against the
corporation in view of her prior acceptance of separation
pay.
Is Nelle correct in claiming that she was illegally dismissed?
(5%) 2016 Bar
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SUGGESTED ANSWER:
 No. In SME Bank, Inc. v. De Guzman (G.R. No.
184517 and 186641, October 8, 2013), there are
two (2) types of corporate acquisitions: asset
sales and stock sales. In asset sales, the corporate
entity sells all or substantially all of its assets to
another entity. In stock sales, the individual or
corporate shareholders sell a controlling block
of stock to new or existing shareholders. Asset
sales happened in this case; hence, Zienna is
authorized to dismiss its employees, but must pay
separation pay.
The buyer Zandra, is not obliged to absorb the
employees affected by the sale, nor is it liable for
the payment of their claims. The most that Zandra
may do, for reasons of public policy and social
justice, is to give preference in hiring qualified
separated personnel of Zienna.
X. Natasha Shoe Company adopted an organizational
streamlining program that resulted in the retrenchment of
550 employees in its main plant. After having been paid
their separation benefits, the retrenched workers
demanded payment of retirement benefits under a CBA
between their union and management. Natasha Shoe
Company denied the workers' demand. 2018 Bar Exams
(a) What is the most procedurally peaceful means to
resolve this dispute? (2.5%)
SUGGESTED ANSWER:
 Since this is a money claim involving the
interpretation and implementation of the CBA, the
retrenched workers can refer the matter to the
grievance machinery and if it remained unresolved
within seven (7) days from the date of its
submission the same shall be automatically
referred to the voluntary arbitration prescribed in
the CBA.
 In the alternative it can be argued, that since this
is a dispute between the retrenched workers and
the employer the same cannot be a subject
matter of grievance and voluntary arbitration. This
is because only disputes between the union and
the company as ruled in Tabique v. International
Copra Export Corporation, G. R. No. 183335,
December 23, 2009, shall be referred to grievance
machinery or voluntary arbitrators. Thus, the
dispute should be resolved by way of mandatory
conciliation-mediation in accordance with Article
234 of the Labor Code.
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(b) Can the workers claim both separation pay and
retirement benefits? (2.5%)
SUGGESTED ANSWER:
 Yes, the workers can claim both separation pay
and retirement benefits. This was settled rule in
the case of Goodyear v. Marina Angus, G.R. No.
185499, 14 November 2014 where it was ruled
that in the absence of an express or implied
prohibition against it, collection of both retirement
benefits and separation pay upon severance from
employment is allowed. This is grounded on the
social justice policy that doubts should always be
resolved in favor of labor rights. (Aquino v.
National Labor Relations Commission, G.R. No.
87653, February 11, 1992)
XI. Nicodemus was employed as a computer programmer
by Network Corporation, a telecommunications firm. He
has been coming to work in shorts and sneakers, in
violation of the "prescribed uniform policy" based on
company rules and regulations. The company human
resources manager wrote him a letter, giving him 10 days
to comply with the company uniform policy. Nicodemus
asserted that wearing shorts and sneakers made him more
productive, and cited his above-average output. When he
came to work still in violation of the uniform policy, the
company sent him a letter of termination of employment.
Nicodemus filed an illegal dismissal case. The Labor Arbiter
ruled in favor of Nicodemus and ordered his reinstatement
with backwages. Network Corporation, however, refused to
reinstate him. The NLRC 1st Division sustained the Labor
Arbiter's judgment. Network Corporation still refused to
reinstate Nicodemus. Eventually, the Court of Appeals
reversed the decision of the NLRC and ruled that the
dismissal was valid. Despite the reversal, Nicodemus still
filed. a motion for execution with respect to his accrued
backwages. 2018 Bar Exams
(a) Were there valid legal grounds to dismiss Nicodemus
from his employment? (2.5%)
SUGGESTED ANSWER:
 Yes, Nicodemus can be dismissed on based on
willful disobedience to the lawful order under
Article 297 (a) of the Labor Code and the
“prescribed uniform policy” of the company.
The basis is the case of St. Luke’s v. Sanchez,
G.R. No. 212054, March 11, 2015 were it was
ruled: At the same time, the employee has the
corollary duty to obey all reasonable rules, orders,
and instructions of the employer; and willful or
intentional disobedience thereto, as a general
rule, justifies termination of the contract of service
and the dismissal of the employee. (Malabago v.
NLRC, 533 Phil. 292, 300 [2006]) x xxx. Note that
for an employee to be validly dismissed on this
ground, the employer’s orders, regulations, or
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instructions must be: (1) reasonable and lawful,
(2) sufficiently known to the employee, and (3) in
connection with the duties which the employee
has been engaged to discharge.”
prevailing prior to his dismissal or separation or,
at the option of the employer, merely reinstated in
the payroll. The posting of a bond by the
employer shall not stay the execution for
reinstatement provided herein.’

(b) Should Nicodemus' motion for execution be granted? The view as maintained in a number of cases is
(2.5%) that:

SUGGESTED ANSWER: ‘x xx [E]ven if the order of reinstatement of the

 Yes, Nicodemus’ motion for execution should be
granted. He is entitled to his accrued salary.
The accrued wages/salaries (reinstatement
wages/salaries) is the consequence of the
reinstatement aspect of the decision of the Labor
Arbiter referred in paragraph 3, Article 229 [223]
of the Labor Code. This means that a dismissed
employee whose case was favorably decided by
the Labor Arbiter is entitled to receive wages
pending appeal upon reinstatement, which is
immediately executory. In other words, it refers to
the wages or salaries which automatically accrued
to a dismissed employee from the notice of the
Labor Arbiter’s order of reinstatement until its
ultimate reversal by the higher court, which could
be the NLRC, the Court of Appeals or the Supreme
Court. The entitlement to accrued wages/salaries
(reinstatement wages/salaries ) of a dismissed
employee was discussed in the cases of Roquero
v. Philippine Airlines, G.R. No. 152329, 449 Phil.
437 (2003), Garcia v. Philippine Airlines, G.R. No.
164856, January 20, 2009, 576 SCRA 479, Islriz
Trading v. Capada, G.R. No. 168501, January 31,
2011, Pfizer Inc. v. Velasco, G.R. No. 177467,
March 9, 2011 and Wenphil Corporation v. Abing,
G.R. No. 207983, April 7, 2014.
Labor Arbiter is reversed on appeal, it is obligatory
on the part of the employer to reinstate and pay
the wages of the dismissed employee during the
period of appeal until reversal by the higher court.
On the other hand, if the employee has been
reinstated during the appeal period and such
reinstatement order is reversed with finality, the
employee is not required to reimburse whatever
salary he received for he is entitled to such, more
so if he actually rendered services during the
period.
In other words, a dismissed employee whose case
was favorably decided by the Labor Arbiter is
entitled to receive wages pending appeal upon
reinstatement, which is immediately executory.
Unless there is a restraining order, it is ministerial
upon the Labor Arbiter to implement the order of
reinstatement and it is mandatory on the
employer to comply therewith.
RESOURCES:
1. Labor Law Review (The Fundamentals) - Ungos
2. CCV Notes on Labor Relations – Commissioner Ted
Villanueva
3. Bar Questions Suggested Answers
4. Labor Code

In resolving the rule on entitlement to accrued

wages between the period where the Labor
Arbiter’s order of reinstatement is pending appeal
and the NLRC Resolution overturning that of the
Labor Arbiter, the case of Garcia v. Philippine
Airlines, Inc., G.R. No. 164856, January 20, 2009,
576 SCRA 479, is in point. The Supreme Court
examined its conflicting rulings with respect to the
application of paragraph 3 of Article 223 of the
Labor Code, viz:

The core of the seeming divergence is the

application of paragraph 3 of Article 223 of the
Labor Code which reads:

‘In any event, the decision of the Labor Arbiter

reinstating a dismissed or separated employee,
insofar as the reinstatement aspect is concerned,
shall immediately be executory, pending appeal.
The employee shall either be admitted back to
work under the same terms and conditions
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