Final Part2 2019 Abad Labor Pre-Week Notes 100319 PDF

2019 LABOR LAW BAR PRE-WEEK HAND-OUTS
FOR 2019 ADAMSON LYCEUM FEU BAR OPERATIONS

THE ABAD NOTES (COMPLETED 05 OCT 2019)
PART2 OF ABAD PRE-WEEK NOTES

LABOR STANDARDS AND WELFARE LEGISLATION
PLUS JURISDICTION AND REMEDIES
G. SPECIFIC ISSUES ON LABOR STANDARDS
1. WAGES.
1.1 Article 97 (f) Labor Code, definition: Remuneration or earnings, however
designated, capable of being expressed in terms of money, whether fixed or
ascertained on a time, task, piece, or commission basis, or other method of
calculating the same, which is payable by an employer to an employee under the
written or unwritten contract of employment for work done or to be done, or for
services rendered or to be rendered and includes the fair and reasonable value, as
determined by the Secretary of Labor, of board, lodging, or other facilities
customarily furnished by the employer to the employee. Fair and reasonable value
shall not include any profit to the employer or to any person affiliated with the
employer.
IMPORTANT PERLAS-BERNABE CASE: Toyota Pasig, Inc. v. De Peralta, G.R.

No. 213488, 07 November 2016, 798 PHIL 121-131
In this case, respondent's monetary claims, such as commissions, tax rebates for
achieved monthly targets, and success share/profit sharing, are given to her as
incentives or forms of encouragement in order for her to put extra effort in
performing her duties as an ISE. Clearly, such claims fall within the ambit of the
general term "commissions" which in turn, fall within the definition of wages
pursuant to prevailing law and jurisprudence.
Thus, respondent's allegation of nonpayment of such monetary benefits places the

burden on the employer, i.e., petitioner, to prove with a reasonable degree of
certainty that it paid said benefits and that the employee, i.e., respondent, actually
received such payment or that the employee was not entitled thereto.||
In this case, petitioner simply dismissed respondent's claims for being purely self-
serving and unfounded, without even presenting any tinge of proof showing that
respondent was already paid of such benefits or that she was not entitled thereto.
In fact, during the proceedings before the LA, petitioner was even given the
opportunity to submit pertinent company records to rebut respondent's claims but
opted not to do so, thus, constraining the LA to direct respondent to submit her
own computations. It is well-settled that the failure of employers to submit the
necessary documents that are in their possession gives rise to the presumption
that the presentation thereof is prejudicial to its cause.
Indubitably, petitioner failed to discharge its afore-described burden. Hence, it is
bound to pay the monetary benefits claimed by respondent. As aptly pointed out
by the NLRC, since respondent already earned these monetary benefits, she
must promptly receive the same, notwithstanding the fact that she was legally
terminated from employment.|
1.2. EMPLOYEES NOT COVERED BY PROVISIONS ON WAGES (Article 98, LC):
➢ farm tenancy / leasehold;

➢ domestic service (household or domestic helpers);
➢ persons working in their respective homes in needle work or in any cottage
industry duly registered in accordance with law;
➢ Barangay micro business enterprise (BMBE) under RA 9178, the BMBE Law.
BMBE – any business entity or enterprise engaged in the production,
processing, or manufacturing of products or commodities, including agro-
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processing, trading and services, whose total assets including those arising
from loans but exclusive of the land on which the particular business entity’s
office, plant and equipment are situated, shall not be more than P3M.
1.3 Wages; facilities and supplements.
Supplements constitute extra remuneration or special privileges or benefits given to

or received by the laborers over and above their ordinary earnings or wages.
Facilities, on the other hand, are items of expense necessary for the laborer’s and
his family’s existence and subsistence so that by express provision of law, they form
part of the wage and when furnished by the employer are deductible therefrom, since
if they are not so furnished, the laborer would spend and pay for them just the same.
In short, the benefit or privilege given to the employee which constitutes an

extra remuneration above and over his basic or ordinary earning or wage is
supplement; and when said benefit or privilege is part of the laborers’ basic
wages, it is a facility. The distinction lies not so much in the kind of benefit or item
(food, lodging, bonus or sick leave) given, but in the purpose for which it is given. In
the case at bench, the items provided were given freely by petitioner employer for
the purpose of maintaining the efficiency and health of its workers while they were
working at their respective projects. Thus, the Court is of the view that the food and
lodging, or the electricity and water allegedly consumed by respondents in this case
were not facilities but supplements which should not be included in the computation
of wages received by respondent employees.
NOTE1: Even if a benefit is customarily provided by the trade, it must still pass the
purpose test set by jurisprudence. Under this test, if a benefit or privilege granted
to the employee is clearly for the employer’s convenience, it will not be considered
as a facility but a supplement. Here, careful consideration is given to the nature of
the employer’s business in relation to the work performed by the employee. This test
is used to address inequitable situations wherein employers consider a benefit
deductible from the wages even if the factual circumstances show that it clearly
redounds to the employers’ greater advantage.
NOTE2: The distinction lies not so much in the kind of benefit or item (food, lodging,
bonus or sick leave) given, but in the purpose for which it is given. If the purpose is
primarily for the employee’s gain, then the benefit is a facility; if it is mainly for the
employer’s advantage, then it is a supplement.
NOTE3: In the ultimate analysis, the purpose test seeks to prevent a circumvention
of the minimum wage law.
1.4 PAYMENT OF WAGES
• Wages shall be paid in cash, legal tender at or near the place of work
• Payment may be made through a bank upon written petition of majority of the
workers in establishments with 25 or more employees and within one kilometer
radius to a bank
• Payment shall be made directly to the employees
• Wages shall be given not less than once every two (2) weeks or twice within a
month at intervals not exceeding 16 days
1.5 SOME GOVERNING RULES:
▪ FAIR AND REASONABLE VALUE shall not include any profit to the employer,
or to any person affiliated with the employer.
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▪ “NO WORK NO PAY” PRINCIPLE. -- If there is no work performed by the

employee, there can be no wage or pay unless the laborer was able, willing, and
ready to work but was prevented by management or was illegally locked out,
suspended or dismissed. But where the failure of employees to work was not due
to the employer’s fault, the burden of economic loss suffered by the employers
should not be shifted to the employer. Each party must bear his own loss.
• EQUAL PAY FOR EQUAL WORK. -- Employees who work with substantially
equal qualifications, skill, effort and responsibility, under similar conditions should
be paid similar salaries (International School Alliance of Educators vs.
Quisumbing, GR No.128845, June 1, 2000).
• CIVIL CODE PROVISIONS:
Art. 1705. The laborer’s wages shall be paid in legal currency.
Art. 1706. Withholding of the wages, except for a debt due, shall not be made by
the employer.
Art. 1707. The laborer’s wages shall be a lien on the goods manufactured or the
work done.
Art. 1708. The laborer’s wages shall not be subject to execution or attachment
except for debts incurred for food, shelter, clothing, and medical attendance.
Art. 1709. The employer shall neither seize nor retain any tool or other articles
belonging to the laborer.
▪ Art. 110, Labor Code. Worker’s preference in case of bankruptcy. — In the

event of bankruptcy or liquidation of an employer’s business, his workers shall
enjoy first preference as regards their wages and other monetary claims, any
provisions of law to the contrary notwithstanding. Such unpaid wages and
monetary claims shall be paid in full before claims of the government and other
creditors may be paid.
Note however: Bankruptcy proceedings must first be instituted for

Article 110 to apply. -- The application of Article 110 of the Labor Code is
contingent upon the institution of bankruptcy or insolvency proceedings
against the employer. Hence, preferential right given to workers under Art.
110 may be invoked only during bankruptcy or insolvency proceedings
against the employer. (Development Bank of the Philippines vs. Secretary of Labor,
179 SCRA 630 [1989]).
We agree with the RCAP that a judgment lien over the subject properties has not
legally attached and that Art. 110 of the Labor Code, in relation to Arts. 2242,
2243, and 2244 of the Civil Code on concurrence and preference of credits, does
not cover the subject properties. Art. 110 of the Labor Code applies only to cases
of bankruptcy and liquidation. Likewise, the abovementioned articles of the
Civil Code on concurrence and preference of credits properly come into play only
in cases of insolvency. Since there is no bankruptcy or insolvency proceeding to
speak of, much less a liquidation of the assets of DWUT, the Union cannot look to
said statutory provisions for support.||| (Associated Labor Unions v. Court of
Appeals, G.R. No. 156882, [October 31, 2008], 591 PHIL 316-331)
2015 BAR EXAM QUESTION: (III)
Benito is the owner of an eponymous clothing brand that is a top seller. He employs
a number of male and female models who wear Benito's clothes in promotional
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shoots and videos. His deal with the models is that Benito will pay them with 3 sets
of free clothes per week. Is this arrangement allowed? (2%)
ANSWER: NO, the arrangement is not allowed. Under Article 102 of the Labor
Code, wages of an employee are to be paid only in legal tender, even when
expressly requested by the employee. Hence, no lawful deal in this regard can be
entered into by and between Benito and his models.
ALTERNATIVE ANSWER: No. The models are Benito’s employees. As such,

their services require compensation in legal tender (Art. 102, Labor Code). The
three sets of clothes, regardless of value, are in kind; hence, the former’s
compensation is not in the form prescribed by law.
1.6 REPUBLIC ACT NO. 6727 AND MINIMUM WAGES
• REPUBLIC ACT NO. 6727 (also known as the “Wage Rationalization Act”)
mandates the fixing of the statutory minimum wages applicable to different
industrial sectors, namely, non-agricultural, agricultural plantation, and
nonplantation, cottage/handicraft, and retail/service, depending on the number
of workers or capitalization or annual gross sales in some sectors.
❖ Creation of the Regional Tripartite Wages and Productivity Boards which

has the authority to fix the wage rates in the different regions of the country.
❖ COVERAGE: The wage increases prescribed under Wage Orders apply to

all private sector workers and employees regardless of their position,
designation, or status, and irrespective of the method by which their wages
are paid.
❖ EXCLUSIONS: wage law: (a) Kasambahay; (b) Persons in the personal

service of another; (c) workers registered in Barangay Micro-Business
Enterprises (BMBE).
❖ ADDITIONAL EXCLUSIONS: Distressed employers; retail/service

establishment with not more than 10 employees. (These must apply for
exemption which must be approved by the Regional Wage Boards;
otherwise, NOT exempted.)
For a retail/service establishment to be exempted from the coverage of the

minimum wage law, it must be shown that the establishment is regularly
employing not more than ten (10) workers and had applied for exemptions
with and as determined by the appropriate Regional Board. (C. Planas
Commercial vs. National Labor Relations Commission, 474 SCRA 608
[2005].)
❖ CREDITABILITY: If expressly provided for and agreed upon in the

collective bargaining agreements, all increases in the daily basic wage
rates granted by the employers three (3) months before the effectivity of
this Act shall be credited as compliance with the increases in the wage
rates prescribed herein. HOWEVER, if the increases given by the
employer are less than the prescribed increases in the wage rates, the
employer shall pay the difference. Such increases shall not include
anniversary wage increases, merit wage increases and those resulting
from the regularization or promotion of employees.
❖ Where the application of the increases in the wage rates under this
Section results in distortions as defined under existing laws in the wage
structure within an establishment and gives rise to a dispute therein, such
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dispute shall first be settled voluntarily between the parties and in the
event of a deadlock, the same shall be finally resolved through compulsory
arbitration by the regional branches of the National Labor Relations
Commission (NLRC) having jurisdiction over the workplace.
❖ Penalty for non-compliance with Minimum Wage Laws under RA 6727: Any
person, corporation, trust, firm, partnership, association or entity which
refuses or fails to pay any of the prescribed increases or adjustments in the
wage rates made in accordance with this Act shall be punished by a fine not
exceeding twenty five thousand pesos (P25,000.00) and/or imprisonment of
not less than one (1) year nor more than two (2) years: Provided, That any
person convicted under this Act shall not be entitled to the benefits provided
for under the Probations Law.
If the violation is committed by a corporation, trust or firm, partnership,
association or any other entity, the penalty of imprisonment shall be
imposed on the entity's responsible officers, including, but not limited to,
the president, vice-president, chief executive officer, general manager,
managing director or partner.
• Minimum wages must always be complied with.
Indeed, regulatory laws are within the category of police power measures from
which affected persons or entities cannot claim exclusion or compensation. For
instance, private establishments cannot protest that the imposition of the
minimum wage is confiscatory since it eats up a considerable chunk of its
profits or that the mandated remuneration is not commensurate for the work
done. The compulsory nature of the provision
for minimum wages underlies the effort of the State, as R.A. No.
6727 expresses it, to promote productivity-improvement and gain-
sharing measures to ensure a decent standard of living for the workers
and their families; to guarantee the rights of labor to its just share in the
fruits of production; to enhance employment generation in the countryside
through industry dispersal; and to allow business and industry reasonable
returns on investment, expansion and growth, and as the Constitution
expresses it, to affirm labor as a primary social economic force.||| (Southern
Luzon Drug Corp. v. Department of Social Welfare and Development, G.R. No.
199669, 25 April 2017, 809 PHIL 315-398)
As explicitly stated in the Minimum Wage Order itself, only employees who are
receiving salaries below the prescribed minimum wage, are entitled to the
wage increase granted under the Wage Order. This is without prejudice to any
wage distortion adjustment that may be had as regards other employees that
may be affected as a consequence of the application thereof. Inasmuch as the
Union employees are already receiving wages higher than that prescribed by
the Wage Order, there can be no argument that the company is NOT obliged
to grant them any wage increase.. (Nasipit Integrated Arrastre vs. NAsipit
Employees Labor Union – ALU-TUCP, G.R. No. 162411, 30 June 2008.)
• Provisions common to all Minimum Wage Laws issued by the

Regional Wage Boards:
❖ Service contracts between Company (principal) and Agency: In cases of

contracting out of projects, and for security, janitorial or similar services,
the employer of the security guards or janitors so assigned to the company,
the prescribed wage increases shall be borne mainly by the principal. Any
contracts executed by and between the principal and the agency shall be
deemed amended accordingly.
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❖ All workers paid by results, including those who are paid on piece work,
takay, pakyaw or task basis, shall be entitled to receive not less than the
prescribed daily minimum wage for eight (8) hours work day, or a proportion
thereof for working less than eight (8) hours.
❖ The minimum wage rates of workers and employees, who by the nature of
their work have to travel, shall be those applicable in the domicile or head
office of the employer. The transfer of the workers and employees from one
region to another shall not diminish the wage rates being enjoyed by them
prior to such transfer. The workers and employees transferred to other
regions with higher rates shall be entitled to the minimum wage rate
applicable therein
• 2010 BAR QUESTION:

A worked as a roomboy in La Mallorca Hotel. He sued for underpayment of
wages before the NLRC, alleging that he was paid below the minimum
wage. The employer denied any underpayment, arguing that based on long
standing, unwritten policy, the Hotel provided food and lodging to its
housekeeping employees, the costs of which were partly shouldered by it
and the balance was charged to the employees. The employees’
corresponding share in the costs was thus deducted from their wages. The
employer concluded that such valid deduction naturally resulted in the
payment of wages below the prescribed minimum. If you were the Labor
Arbiter, how would you rule? Explain. (3%)
ANSWER:
I will rule in favor of A. Article 97(f) defines wage to “xxx include the fair and
reasonable value as determined by the Secretary of Labor, of board, lodging
and other facilities customarily furnished by the employer to the employee.”
Although it appears that there is a long standing policy, there is no showing
that the value ascribed to food and lodging is fair and reasonable, and that
it is in accordance with the determination of the Secretary of Labor.
1.7 GENERAL RULE: WAGE DEDUCTIONS ARE NOT ALLOWED
EXCEPTIONS:
ALLOWABLE DEDUCTIONS WITHOUT EMPLOYEE’S CONSENT:
a. SSS, Philhealth and PAG-IBIG contributions;

b. Withholding taxes on income
c. Where the employer is authorized by law or regulations issued by the
Secretary of Labor;
d. Agency fees, where the employee who is not a member of the exclusive
bargaining agent but a member of the appropriate bargaining unit, may be
assessed a reasonable fee for benefits received under a CBA.
ALLOWABLE DEDUCTIONS WITH THE EMPLOYEE’S CONSENT:
a. Reasonable value of meals and other facilities;

b. Payment of union dues, which may or may not be under an automatic
charging-off arrangement
c. Debt payments to the employer or third persons with employee’s explicit
written consent
d. Worker’s insurance acquired by the employer with employee’s consent;
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IMPORTANT PERLAS-BERNABE CASE: || Ramos v. BPI Family Savings Bank,

Inc., G.R. No. 203186 (Resolution), 04 December 4, 2013, 722 PHIL 816-827.
Facts: Ramos was employed by BPI Family in 1995 and eventually became its
Vice-President for Dealer Network Marketing/Auto Loans Division. During his
tenure, a client applied for, and secured several auto and real estate loans from
BPI family which were duly approved and promptly paid. However, it turns out that
there was one auto loan in the amount of P2.2M which was NOT applied for by
said client, but which was fraudulently used by another. BPI Family conducted an
investigation and held Ramos liable together with his subordinates, on account of
his alleged negligence in the supervision of his department. When Ramos retired,
the Bank deducted a considerable amount from his retirement pay, for which
reason Ramos executed a Quitclaim. Claiming that the deductions made by BPI
Family were illegal, Ramos filed a complaint for underpayment of retirement
benefits againstteh Bank.
Issue: May the Bank validly deduct the proportionate costs of the car loan from
Ramos’ retirement pay?
Supreme Court: NO. The requirement that is that the Bank must be able to prove
its imputation of negligence against Ramos. Well-settled is the rule that the burden
of proof rests upon the party who asserts the affirmative of an issue. In this case,
BPI Family failed to establish that the duty to confirm and validate information in
credit applications and determine credit worthiness of prospective loan applicants
rests with the Dealer Network Marketing Department, which is the department
under the supervision of Ramos. Quite the contrary, records show that these
responsibilities lie with the bank's Credit Services Department, namely its Credit
Evaluation Section and Loans Review and Documentation Section, of which
Ramos was not part of. Moreover, Ramos merely followed standing company
practice when he issued the PO and ATD without prior approval from the bank's
Credit Services Department. As such, he cannot be said to have acted negligently.
Consequently there is no basis for the deduction of the amount from his retirement
pay.|
2015 CASE: Emer Milan, et al. vs. NLRC, et al., G.R. No. 202961, February 04,
2015. -- An employer can withhold terminal pay and benefits pending the
employees’ return of its properties. The return of the property’s possession
became an obligation or liability on the part of the employees when the employer-
employee relationship ceased. The NLRC has jurisdiction to determine,
preliminarily, the parties’ right over a property, when it is necessary to determine
an issue related to rights or claims arising from an employer-employee
relationship.
2017 BAR QUESTION
Tarcisio was employed as operations manager and received a monthly salary of

P25,000.00 through his payroll account with DB Bank. He obtained a loan from
Roberto to purchase a car. Tarcisio failed to pay Roberto when the loan fell due.
Roberto sued to collect, and moved to garnish TNarcisio's payroll account. The
latter vigorously objected and argued that salaries were exempt from
garnishment. Is Tarcisio correct? Explain your answer. (3%)
ANSWER: Case law exempts wages of rank-and-file employees from

garnishment. However, Tarcisio, as operations manager, is a managerial
employee. Since the rule covers only rank-and-file employees, therefore Tarcisio’s
salary is not exempt from garnishment. (Rosario A. Gaa vs. Court of Appeals, G.R.
No. L-44169, December 03, 1985.)
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1.8 NON-DIMINUTION OF BENEFITS, EXPLAINED:
❖ Art. 100, Labor Code. Prohibition against elimination or diminution of

benefits. — Nothing in this Book shall be construed to eliminate or in any way
diminish supplements, or other employee benefits being enjoyed at the time of
promulgation of this Code.
• GENERAL RULE: Benefits being given to employees shall not be taken back
or reduced unilaterally by the employer because the benefit has become part
of the employment contract, written or unwritten
EXCEPTIONS:
1. If the employee also consents to the deduction.
2. If the deduction is made to correct an error.
EXCEPTION TO THE EXCEPTION:

If the error is left uncorrected for a reasonable period of time, it ripens into a
company policy and employees can demand for it as a matter of right.
IMPORTANT: TSpic Corporation vs. TSpic Employees Union-FFW, G.R.

No. 163419, 13 February 2008. – No diminution of wages where the deduction
is to correct an error, and such was done within a reasonable time.
• Requisites for voluntary employer practice such that the same cannot be
unilaterally withdrawn anymore: (a) It should have been practiced over a
long period of time; and (b) It must be shown to have been consistent and
deliberate. (Sevilla Trading Company vs. Semana, 428 SCRA 239 [2004], citing
Globe Mackay Cable and Radio Corp. vs. NLRC, 163 SCRA 71 [1988].
• As to length of time required to ripen into a corporate policy: The

Supreme Court has not laid down any specific rule requiring a specific
minimum number of years. Rather, the test of long practice has been
enunciated thus: where the company agreed to continue giving a benefit
knowing fully well that said employees are not covered by the law requiring
payment of said. (Oceanic Pharmacal Employees Union (FFW) vs. Inciong, 94
SCRA 270 [1979]). Hence, the Supreme Court has ruled in specific cases as
follows:
a. Davao Fruits Corporation vs. Associated Labor Unions (225 SCRA 562
[1993]): six (6) years.
b. Davao Integrated Port Stevedoring Services vs. Abarquez (220 SCRA 197
[1983]): three (3) years and nine (9) months
c. Sevilla Trading Company vs. Semana, (428 SCRA 239 [2004]: two (2)
years.
• General rule: Employees have a vested right over existing benefits voluntarily
granted to them by their employer. Thus, any benefit and supplement being
enjoyed by the employees cannot be reduced, diminished, discontinued or
eliminated by the employer.
• Elements for diminution of benefits:

(1) the grant or benefit is founded on a policy or has ripened into a practice
over a long period of time;
(2) the practice is consistent and deliberate;
(3) the practice is not due to error in the construction or application of a doubtful
or difficult question of law; and
(4) the diminution or discontinuance is done unilaterally by the employer.
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• Question: When can a policy be considered to have ripened into a regular

company practice?
Answer: The employee must prove by substantial evidence that the giving of
the benefit is done over a long period of time, and that it has been made
consistently and deliberately. Jurisprudence has not laid down any hard-and-fast
rule as to the length of time that company practice should have been exercised
in order to constitute voluntary employer practice. The common denominator in
previously decided cases appears to be the regularity and deliberateness of the
grant of benefits over a significant period of time. It requires an indubitable
showing that the employer agreed to continue giving the benefit knowing well
that the employees are not covered by any provision of the law or agreement
requiring payment thereof. In sum, the benefit must be characterized by
regularity, voluntary and deliberate intent of the employer to grant the benefit
over a considerable period of time.
Question: Will there diminution of salaries and benefits in this case?
Answer: NO. No vested right accrued to the additional salary inasmuch as the
payment was made erroneously, and more so as the company sought to correct
the error as soon as it learned about it.. (TSpic ibid.)
2013 BAR QUESTION:
Inter-Garments Co. manufactures garments for export and requires its employees to
render overtime work ranging from two to three hours a day to meet its clients'
deadlines. Since 2009, it has been paying its employees on overtime an additional
35% of their hourly rate for work rendered in excess of their regular eight working
hours.
Due to the slowdown of its export business in 2012, Inter-Garments had to reduce
its overtime work; at the same time, it adjusted the overtime rates so that those who
worked overtime were only paid an additional 25%instead of the previous 35%. To
replace the workers' overtime rate loss, the company granted a one-time 5% across-
the-board wage increase.
Vigilant Union, the rank-and-file bargaining agent, charged the company with Unfair
Labor Practice on the ground that (1) no consultations had been made on who would
render overtime work; and (2) the unilateral overtime pay rate reduction is a violation
of Article 100 (entitled Prohibition Against Elimination or Diminution of Benefits) of
the Labor Code.
Is the union position meritorious? (8%)
ANSWER: The allegation of ULP by the Union is not meritorious. The selection as
to who would render overtime is a management prerogative. Moreover, said
decision does not appear to be motivated with bad faith, and purposely to circumvent
or interfere with the exercise of the right to self-organization of the employees.
However, charge of the Union on diminution of benefits (violation of Art. 100 LC)
appears to be meritorious. Since three (3) years have already elapsed, the overtime
rate of 35% has ripened into practice and policy, and cannot anymore be removed.
(Sevilla Trading vs. Semana, 428 SCRA 239 [2004].} This is deliberate, consistent
and practiced over a long period of time.
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2. THIRTEENTH MONTH PAY

2.1 How much: 1/12th of the basic salary of an employee within a calendar
year.
2.2 COVERAGE
• All employers are required to pay all their rank-and-file employees a 13th month
pay not later than December 24 of every year.
▪ Such employees are entitled to the benefit regardless of their designation or

employment status and irrespective of the method by which their wages are paid,
provided that they have worked for at least 1 month during a calendar year;
2.3 EXCLUSIONS or EXEMPTIONS FROM COVERAGE
1. Government and any of its political subdivisions, including GOCCs.

Exception: Corporations operating essentially as private subsidiaries of the
Government;
2. Employers already paying their employees 13th month pay or more in a calendar
year or its equivalent at the time of issuance of PD 851;
▪ “Its equivalent” includes Christmas bonus, mid-year bonus, cash

bonuses and other payments amounting to not less than 1/12 of the
basic salary but shall not include cash and stock dividends, COLA and
all other allowances regularly enjoyed by the employees as well as non-
monetary benefits.
3. Employers of household helpers and persons in the personal service of another in

relation to such workers;
4. Distressed employers:
a. currently incurring substantial losses or
b. in the case of non-profit institutions and organizations, where their income,
whether from donations, contributions, grants and other earnings from any
source, has consistently declined by more than forty (40%) percent of their
normal income for the last two (2) years, subject to the provision of Section 7
of this issuance;
5. Employers of those who are paid on commission, boundary, or task basis, and
those who are paid a fixed amount for performance of a specific work, irrespective
of the time consumed in the performance thereof.
Exception: Where the workers are paid on a piece-rate basis, in which case the
employer shall grant the required 13th month pay to such workers.
▪ Piece Rate – employees who are paid a standard amount for every
piece or unit of work produced that is more or less regularly
replicated, without regard to the time spent in producing the same.
3. BONUS
3.1 Nature of a bonus: a prerogative, not an obligation. -- The matter of giving a
bonus over and above the worker’s lawful salaries and allowances is entirely
dependent on the financial capability of the employer to give it. (Traders Royal Bank
vs. NLRC, 189 SCRA 274 [1990]).
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EXCEPTION: When demandable under a contract.
2015 BAR EXAM QUESTION:

Far East Bank (FEB) is one of the leading banks in the country. Its compensation
and bonus packages are top of the industry. For the last 6 years, FEB had been
providing the following bonuses across-the-board to all its employees:
(a) 13th month pay;
(b) 14th to 18th month pay;
(c) Christmas basket worth P6,000;
(d) Gift check worth P4,000; and
(e) Productivity-based incentive ranging from a 20% to 40%
increase in gross monthly salary for all employees who
would receive an evaluation of "Excellent" for 3 straight
quarters in the same year.
Because of its poor performance over-all, FEB decided to cut back on the bonuses
this year and limited itself to the following:
(a) 13th month pay;
(b) 14th month pay;
(c) Christmas basket worth P4,000; and
(d) Gift check worth P2,000
Katrina, an employee of FEB, who had gotten a rating of "Excellent" for the last 3
quarters was looking forward to the bonuses plus the productivity incentive bonus.
After learning that FEB had modified the bonus scheme, she objected. Is Katrina's
objection justified? Explain. (3%)
Answer: Katrina was correct. Having enjoyed the across-the-board bonuses for six
years, Katrina’s right to them has been vested already. Hence, none of them can be
withheld or reduced without violating the Principle of Non-Diminution of Benefits.
Benefits can be reduced when the company is in the red, i.e., its losses are
substantial and duly established with financial statements duly certified to by an
independent external auditor. In the problem, the company is in the black only
because it has not proven its alleged losses to be substantial losses in accordance
with law. Permitting reduction of pay at the slightest indication of losses is contrary
to the policy of the State to afford full protection to labor and promote full employment
(Linton Commercial Co. v. Hellera, et al., 23 Feb. 2012). As to the withheld
productivity-based bonuses, the basis of payment is not the company's performance
but Katrina’s. Therefore, Katrina is deemed to have earned them because of her
excellent performance ratings for three quarters. On this basis, they cannot be
withheld without violating Art. 116 of the Labor Code because they are wage-type.
Alternative answer: No, Katrina’s objection is not justified. The grant of a bonus or
special incentives, being a management prerogative, is not demandable and
enforceable obligation, except when the bonus or special incentive is made part of
the wage, salary or compensation of the employee. (Protacio vs. Laga Mananghaya
and Co., G.R. No. 168654, March 25, 2009, 582 SCRA 417, 429). FEB cannot be
forced to distribute bonuses when it can no longer afford to pay. To hold otherwise
would be to penalize an employer for its past generosity. (Producers Bank of the
Philippines vs. NLRC, 355 SCRA 489 [2001]).
2014 BAR QUESTION:

Lito was anticipating the bonus he would receive for 2013. Aside from the 13th month
pay, the company has been awarding him and his other co-employees a two to three
months bonus for the last 10 years. However, because of poor over-all sales
performance for the year, the company unilaterally decided to pay only a one month
bonus in 2013. Is Lito’s employer legally allowed to reduce the bonus?
11
ANSWER:
Yes. The granting of a bonus is a management prerogative, something given in
addition to what is ordinarily received by or strictly due the recipient. A bonus is not
a demandable and enforceable obligation, except when it is made part of the wage,
salary or compensation of the employee. An employer cannot be enforced to
distribute the usual bonuses when it can no longer afford to pay. To hold otherwise
would be to penalize employer for his past generosity. (Producers Bank of the
Philippines vs. NLRC, 355 SCRA 489 [2001].)
ALTERNATIVE ANSWER: NO. Principle of non-diminution of benefits apply. The

bonus had been given for a considerable length of time and hence, has ripened into
a company policy. The benefit can no longer be withdrawn without the employees’
consent, as it has become demandable as a matter of right.
4. HOURS OF WORK.
4.1 Hours of worked shall include: (a) all time during which an employee is required to
be on duty or to be at the prescribed workplace, and (b) all time during which an
employee is suffered or permitted to work. (Art. 84, Labor Code; See also Rada vs.
NLRC, 205 SCRA 69 [1992].)
4.2 Rest period of short duration during working hours shall be counted as hours
worked. (Art. 84, Labor Code.) Example: coffee break of 15 minutes; meal period of
less than one hour, e.g., 30 minutes.

Percival was a mechanic of Pacific Airlines. He enjoyed a meal break of one hour.
However, during meal breaks, he was required to be on stand-by for emergency
work. During emergencies, he was made to forego his meals or to hurry up eating.
He demanded payment of overtime for work done during his meal periods. Is
Percival correct? Explain your answer. (3%)
ANSWER: Percival is correct. Where during the meal break, the workers are
required to stand by for emergency work, or where said meal hour is not one
complete rest, such period is considered overtime. (Pan American World Airways
System (Phil.) V. Pan American Employees Association, 1 SCRA 527 [1961].)

After working from 10 a.m. to 5 p.m. on a Thursday as one of 5,000 employees in
a beer factory, A hurried home to catch the early evening news and have dinner
with his family. At around 10 p.m. of the same day, the plant manager called and
ordered A to fill in for C who missed the second shift.
a. May A validly refuse the plant manager’s directive? Explain. (2%)
b. Assuming that A was made to work from 11 p.m. on Thursday until 2 a.m. on
Friday, may the company argue that, since he was two hours late in coming to work
on Thursday morning, he should only be paid for work rendered from 1 a.m. to 2
a.m.? Explain? (3%)
ANSWER:
A. Yes, no employee may be made to work beyond 8 hours a day against his will
(Section 10, Book III, Rule II, IRR, Labor Code.)
B. No, undertime cannot be offset by overtime. (Article 88, Labor Code.)
4.3 Exemptions. (See Art. 82, Labor Code.) . -- The following employees are not
covered by the Labor Code provisions on hours of work:
a) Government employees;
b) Managerial employees (International Pharmaceuticals, Inc. vs. NLRC, 287 SCRA
213 [1998].);
12
c) Field Personnel;
d) Members of the employer who are dependent upon him for support;
e) Domestic helpers and persons in the personal service of another;
f) Workers who are paid by results, e.g., piece workers. (Red V Coconut Products,
Ltd. vs. CIR, 17 SCRA 553 [1966], citing Lara vs. del Rosario, 94 Phil. 780) (Note:
Reason is that workers who are paid by the result are compensated on the basis of the
work completed, and NOT in respect of the time spent working on it).
4.4 Hours of work: Hours of work shall include: (a) all time during which an employee
is required to be on duty or to be at the prescribed workplace, and (b) all time during
which an employee is suffered or permitted to work. The normal working hours shall
be no more than eight (8) hours a day. Meal and rest period: meal break of less
than one (1) hour and short rest periods shall be considered compensable working
time
4.5 Holiday pay. -- The employee is entitled to the payment of his regular daily basic
wage (100%) during said holidays, even if the worker did not report for work on said
days; PROVIDED THAT HE WAS PRESENT OR WAS ON LEAVE OF ABSENCE
WITH PAY ON THE WORK DAY IMMEDIATELY PRECEDING THE HOLIDAY. If
the employee was suffered to work during the said holidays, they will be entitled to
payment of holiday premium of 200% of his basic wage (100% of basic wage PLUS
100%).
• Premium pay for work within 8 hours on:

1. Special or rest day: plus 30% of basic daily rate (BDR)
2. Rest day falling on a special day: plus 50% of BDR
3. Rest day falling on a regular holiday: plus 30% of 200% of BDR
• Overtime pay for work in excess of 8 hours on:

1. Ordinary days: plus 25% of the basic hourly rate
2. Special days, rest days and holidays: plus 30% of the regular hourly
rate on said days
Overtime is NOT a benefit; rather it is simply compensation for services rendered

AFTER the eight hours of work. The requirement of rendering additional service
differentiates overtime pay from benefits such as thirteenth month pay or yearly
merit increase. BENEFITS DO NOT REQUIRE ANY ADDITIONAL SERVICE
FROM THEIR BENEFICIARIES. Thus, overtime pay does not fall within the
definition of benefits under Article 100 of the Labor Code. (San Miguel Corporation
vs. Numeriano Layoc, Jr., et al. G.R. No. 149640, 19 October 2007.)

LKG Garments Inc. makes baby clothes for export. As part of its measures to meet
its orders, LKG requires its employees to work beyond eight (8) hours everyday,
from Monday to Saturday. It pays its employees an additional 35% of their regular
hourly wage for work rendered in excess of eight (8) hours per day. Because of
additional orders, LKG now requires two (2) shifts of workers with both shifts
working beyond eight (8) hours but only up to a maximum of four (4) hours. Carding
is an employee who used to render up to six (6) hours of overtime work before the
change in schedule. He complains that the change adversely affected him because
now he can only earn up to a maximum of four (4) hours’ worth of overtime pay.
Does Carding have a cause of action against the company? (4%)
Answer: No, Carding has no cause of action. There is no diminution of benefits.
Overtime pay is simply additional compensation for work done beyond the eight-
hour work day. In the exercise of its management prerogatives, and absent proof
that the decision to create two shifts was done in circumvention of the employees’s
rights, management may change schedule of its employees. (Manila Jockey Club
Employees Union vs Manila Jockey Club, GR 16770, 07 March 2001)
13
Alternative answer: No, Carding has no cause of action. Rendition of overtime is

a decision within the valid exercise of management prerogatives. LKG has the right
to determine whether or not the same is intended to be permanent and regular, not
contingent nor temporary, and given only to remedy a situation which can change
anytime. (Philippine National Bank v. Philippine National Bank Employees
Association (PEMA), 115 SCRA 507 [1982]).
4.6 Nightshift differential pay: plus 10% of the basic/regular rate for work between
10PM – 6AM (For further discussions under Republic Act No 10151, Repealing the
Nightshift Prohibition on Women, see page 61).
4.7 Service incentive leave: 5 days with pay per year of service
.
4.8 Service charges: 85% for distribution to rank-and-file employees; 15% for losses,
breakages, or distribution to managerial employees (applicable only in
establishments collecting service charges)
2012 BAR QUESTION

Dennis was a taxi driver who was being paid on the "boundary" system basis. He
worked tirelessly for Cabrera Transport Inc. for fourteen (14) years until he was
eligible for retirement. He was entitled to retirement benefits. During the entire
duration of his service, Dennis was not given his 13th month pay or his service
incentive leave pay.
a. Is Dennis entitled to 13th month pay and service leave incentive pay? Explain.
(5%)
b. Since he was not given his 13th month pay and service incentive leave pay,
should Dennis be paid upon retirement, in addition to the salary equivalent to
fifteen (15) days for every year of service, the additional 2.5 days representing
one-twelfth (1/12) of the 13th month pay as well as the five (5) days representing
the service incentive leave for a total of 22.5 days? Explain. (5%)
ANSWER:
a. Yes, Dennis is entitled to 13th month pay but only for three (3) years prior to his
retirement because money claims prescribe in three (3) years. (Art. 291,
Labor Code.) However, Dennis is entitled to his service incentive leave pay for
the entire duration of his service of 14 years, because service incentive leave is
cumulative and commutable or convertible to cash. (Fernandez vs. NLRC,
285 SCRA 149 [1998].)
b. Yes, the retirement pay of Dennis under the Retirement Pay Law should be
considered apart from his 13th month pay of 3 years and his service incentive
leave pay for 14 years, both of which have already accrued prior to his
retirement.
On top of this, Dennis should be paid his retirement pay under the law at the
rate of 22.5 days multiplied by 14 years of service with the company. (Capitol
Wireless vs. Confessor 264 SCRA 68 [1996].)
5. EMPLOYMENT OF HOUSEHELPERS VS. HOMEWORKERS

(See also KASAMBAHAY LAW)
5.1 Domestic helper or househelpers or domestic servant defined. -- shall

refer to any person, whether male or female, who renders services in and about
the employer’s home and which services are usually necessary or desirable for the
maintenance and enjoyment thereof, and ministers exclusively to the personal
comfort and enjoyment of the employer’s family.”
• Such definition covers family drivers, domestic servants, laundry women,

yayas, gardeners, houseboys and other similar househelps. (Apex Mining
Company, Inc. vs. NLRC, 196 SCRA 251 [1991]). – NOTE DISCREPANCY BETWEEN
14
LAW AND IMPLEMENTING RULES WHICH EXCLUDED THE DRIVERS FROM

COVERAGE; ALREADY ASKED IN 2018 BAR.)
• If the househelp or laundrywomen is suffered to work in staffhouses of a

company to attend to the needs of the company’s guest and other persons
availing of said facilities, then they are NOT household helpers as defined by
law but employees of the company. (Apex Mining Company, Inc. vs. NLRC, ibid.)
• BENEFITS ACCORDED TO HOUSE-HELPERS (Book III, Title 3, Chapter III,

LC)
1. Not to be assigned to non-household work;
2. Reasonable compensation (minimum cash wage);
3. Lodging, food and medical attendance;
4. If under 18 years, an opportunity for elementary education (cost of which
shall be part of househelper’s compensation);
5. Contract for household service shall not exceed 2 years (renewable from
year to year);
6. Just and humane treatment;
7. Right not to be required to work for more than 10 hrs. a day (if the
househelper agrees to work overtime and there is additional compensation,
the same is permissible);
8. Right to 4 days vacation each month with pay (if the helper does not ask
for the vacation, the number of vacation days cannot be accumulated, he
is only entitled only to its monetary equivalent);
9. Funeral expenses must be paid by the employer if the house-helper has no
relatives with sufficient means in the place where the head of the family
lives;
10. Termination only for just cause;
11. Indemnity for unjust termination of service;
12. Employment certification as to nature and duration of service and efficiency
and conduct of the house-helper.
5.2 Homeworker, defined.-- one who performs in or about his home any
processing of goods or materials, in whole or in part, which have been
furnished directly or indirectly, by an employer and thereafter to be returned
to the latter. (Book III, Rule XIV, Section 1 of the Omnibus Rules
Implementing the Labor Code.)
HOUSEHELPERS HOME WORKERS
Minister to the personal needs and Performs in or about his own home any
comfort of his employer in the latter’s processing or fabrication of goods or materials,
home in whole or in part, which have been furnished
directly or indirectly, by an employer and sold
thereafter to the latter.
• RIGHTS and BENEFITS ACCORDED TO HOMEWORKERS (Department Order

No. 5, replacing Rule XIV of the Rules Implementing Book III of the Labor Code):
1) Formation and registration of labor organization of industrial homeworkers.
2) It also makes explicit the employer’s duty to pay and remit SSS, Philhealth and
ECC premiums.
3) Prohibitions for Homework

➢ explosives, fireworks and articles of like character;
➢ drugs and poisons;
➢ other articles, the processing of which requires exposure to toxic
substance.
15
4) CONDITIONS FOR DEDUCTION FROM HOMEWORKER’S EARNINGS

No employee, contractor, or subcontractor shall make any deduction from the
homeworker's earnings for the value of materials which have been lost,
destroyed, soiled or otherwise damaged unless the following conditions are
met:
1. The homeworker concerned is clearly shown to be responsible for the loss
or damage;
2. The employee is given reasonable opportunity to show cause why
deductions should not be made;
3. The amount of such deduction is fair and reasonable and shall not exceed
the actual loss or damages; and
4. The deduction is made at such rate that the amount deducted does not
exceed 20% of the homeworker's earnings in a week.
5.3 REPUBLIC ACT NO. 10361 OTHERWISE KNOWN AS THE “BATAS

KASAMBAHAY”. Effective 18 January 2013. Implementing Rules
effective on 04 June 2013 (by Atty. Enz Palmares)
“For quite a time, the welfare of our poor household helpers has been overlooked
and neglected not only by the government but by our society, as well. It is for this
reason that this Representation filed Senate Bill No. 860, with the ardent purpose
of protecting the rights and interests of this massive, yet invisible everyday army
and unsung heroes of the Philippine economy.” – Sen. Jinggoy Estrada
5.3.1 Applicable to the following personnel whether under a live-in or live-

out arrangements, to wit:
a) General househelp;
b) Yaya;
c) Cook;
d) Gardener;
e) Laundry person; or
f) Any person who REGULARLY performs domestic work in one
household on an occupational basis.
5.3.2 NOT applicable to the following personnel:
a) Service providers;
b) Family drivers; (Ada’s note: Family drivers were NOT exempted under
the law but only in the Implementing Rules. This may thus be subject to
question. (Already asked in 2018 Bar.)
c) Children under foster family arrangements; and
d) Any other person who performs work occasionally or sporadically and
not on an occupational basis.
5.3.3 EMPLOYMENT CONTRACT - an employment contract must be duly

executed by the employer and the Kasambahay in a language or dialect
known to both parties. A copy said contract shall be furnished to the Punong
Barangay of the barangay where the employer lives. The employment
contract must contain the following pertinent details, to wit:
a) Duties and responsibilities of the Kasambahay, including the

responsibility to render satisfactory service at all times;
b) Period of employment;
c) Compensation;
d) Authorized deductions;
e) Hours of work and proportionate additional payment;
f) Rest days and allowable leaves;
g) Board, lodging and medical attention;
16
h) Agreements on deployment expenses, if any;

i) Loan agreement, if any;
j) Termination of employment; and
k) Any other lawful condition agreed upon by both parties.
5.3.4 RIGHTS OF KASAMBAHAY
a. MINIMUM WAGE - A minimum wage of Two Thousand Five Hundred

Pesos (P2,500.00) per month shall be paid to a Kasambahay employed
in the National Capital Region (minimum wage of P2,000.00 for those
employed in cities and first class municipalities outside NCR, and
P1,500.00 for those employed in other municipalities), which must be
paid in cash at least once a month.
(UPDATE: The Regional Wage Boards have increased the respective

minimum wages of the Kasambahays in their respective jurisdictions. For
NCR: P3,500.00/month, as of Sept 2018. For other regions, please check
https://www.bwsc.dole.gov.ph/programs-and-projects-
submenu1/kasambahay/483-current-monthly-minimum-wage-for-
domestic-workers-%20kasambahay.html)
b. DAILY AND WEEKLY REST PERIODS - The Batas Kasambahay

ensures that a Kasambahay must have an aggregate daily rest period of
eight (8) hours per day, and at least twenty four (24) consecutive hours
of rest in a week. The employer and Kasambahay may further agree to
the following:
1) Scheduled weekly rest day of the Kasambahay, wherein the latter’s

preference must be respected if the same is based on religious
grounds;
2) Offsetting a day of absence with a particular rest day; or
3) Accumulating rest days not exceeding five (5) days.
c. SERVICE INCENTIVE LEAVE -- A Kasambahay who has rendered at

least one (1) year of service shall be entitled to a service incentive leave
of at least five (5) days with pay. Unused service incentive leave shall not
be carried over to succeeding years and are not convertible to cash.
d. THIRTEENTH (13th) MONTH PAY -- The Kasambahay who has rendered

at least one month service shall be entitled to a thirteenth month pay of
at least one-twelfth (1/12) of his total basic salary. The 13th month pay
shall be paid to the Kasambahay not later than 24 December of every
year or upon his/her separation from employment.
e. MANDATORY GOVERNMENT CONTRIBUTIONS (SSS,

PHILHEALTH, PAG-IBIG) - The Batas Kasambahay dictates upon the
employers their obligation to register every Kasambahay in their employ
to the SSS, PhilHealth and Pag-ibig: provided, that the Kasambahay
concerned has rendered at least one (1) month of service to the
employer. The mandatory premium payments or contributions shall be
borne solely by the employer. However, if the Kasambahay is
receiving a monthly wage of at least Five Thousand Pesos
(P5,000.00), the latter shall pay the proportionate share in the
premium payments or contributions in the SSS, PhilHealth and Pag-
ibig.
17
5.3.5 2014 BAR EXAMINATION QUESTION:
Linda was employed by Sectarian University (SU) to cook for the members
of a religious order who teach and live inside the campus. While performing
her assigned task, Linda accidentally burned herself. Because of the extent
of her injuries, she went on medical leave. Meanwhile, SU engaged a
replacement cook. Linda filed a complaint for illegal dismissal, but her
employer SU contended that Linda was not a regular employee but a
domestic househelp. Decide. (4%) (Note: This has been asked previously
in the 2007 Bar examinations.)
ANSWER: SU is guilty of illegal dismissal.
A domestic househelp is employed in the employer’s home to minister

exclusively to the personal comfort and enjoyment of the employer’s family.
The criteria are the personal comfort and enjoyment of the family of the
employer in the home of said employer.
Such is not the case of Linda. The work performed by Linda in the Sectarian
University could not be categorized as mere domestic work as a cook for
the members of a religious order who teach and live inside the campus.
Linda’s work is essential and important to the operation and religious
function of SU. In such a case, Linda is an employee of SU in its teaching
business and Linda is thus entitled to the privileges of a regular employee.
(APEX Mining Company, Inc., vs. NLRC, 196 SCRA 251 [1991]; Barcenas vs.
NLRC, 187 SCRA 498 [1990]).
2017 BAR QUESTION:

Are there differences between a househelper and a homeworker? Explain
your answer. (4%)
ANSWER: Househelper refers to any person whether male or female, who

renders services in and about the employer’s home and which services
are usually necessary or desirable for the maintenance and enjoyment
thereof, and ministers exclusively to the personal comfort and enjoyment
of the employer’s family. (Rule XIII, Section 1(b), Book 3, Labor Code; Apex
Mining Company, Inc. vs. NLRC, 196 SCRA 251 [1991]); whereas, a
homeworker is one who works in a system of production under an employer
or contractor whose job is carried out at his/her home, the materials of
which may or may not be furnished by the employer or contractor.
(Department Order No. 005-92, DOLE.)
6. EMPLOYMENT OF MINORS: (cf Sec. 12, R.A. 7610, as amended by R.A.

9231).
6.1 General rules: (Article 137. Minimum employable age)
(a) No child below fifteen (15) years of age shall be employed, except when he works
directly under the sole responsibility of his parents or guardian, and his
employment does not in any way interfere with his schooling.
(b) Any person between fifteen (15) and eighteen (18) years of age may be
employed for NON-HAZARDOUS or DELETRIOUS WORK such number of
hours and such periods of the day as determined by the Secretary of Labor in
appropriate regulations.
©. If 18 years old and above – employable; no conditions attached.
18
Article 140. Prohibition against child discrimination..-- No employer shall

discriminate against any person in respect to terms and conditions of employment
on account of his age.
6.2 Special rules on work engagement of child below 15 years of age.
A. When the child works directly under the sole responsibility of his parents
or legal guardian who employs members of his/her family only, under the
following conditions:
• The employment does not endanger the child’s life, safety, health and
morals;
• The employment does not impair the child’s normal development;
• The employer parent or legal guardian provides the child with the
primary and/or secondary education prescribed by the Department of
Education
B. Where the child’s employment or participation in public entertainment or

information through cinema, theater, radio or TV is essential provided that:
• The employment does not involve ads or commercials promoting
ALCOHOLIC BEVERAGES, INTOXICATING DRINKS, TOBACCO
AND ITS BY-PRODUCTS OR EXHIBITING VIOLENCE;
• There is a written contract approved by the DOLE; and
• The conditions prescribed in no. 1 are met;
• the following requirements are complied with:
• employer shall ensure protection, health, morals, and normal
development of the child;
• employer shall institute measures to prevent child’s exploitation /
discrimination taking into account the system and level of
remuneration, duration, and arrangement of working time;
• employer shall formulate and implement a continuing program for
training and skills acquisition of the child, subject to approval and
supervision of competent authorities. (as amended by RA 9231)
6.3 Comparisons: (Rep. Act No. 9231)
A child below 15 • Allowed to work for not more than 20 hours a week.
Provided, the work shall not be more than 4 hours in a
day.
• Shall not be allowed to work between 8pm and 6am of the
following day.
A child above 15 • Shall not be allowed to work for more than 8 hours a day,
years of age but and in no case beyond 40 hours a week.
below 18 • Shall not be allowed to work between 10 pm and 6am the
following day
6.4 2015 BAR EXAMINATION QUESTION (V):

Soledad, a widowed school teacher, takes under her wing one of her students, Kiko,
13 years old, who was abandoned by his parents and has to do odd jobs in order to
study. She allows Kiko to live in her house, provides him with clean clothes, food, and
a daily allowance of 200 pesos. In exchange, Kiko does routine housework, consisting
of cleaning the house and doing errands for Soledad. One day, a representative of the
DOLE and the DSWD came to Soledad's house and charged her with violating the law
that prohibits work by minors. Soledad objects and offers as a defense that she was
not requiring Kiko to work as the chores were not hazardous. Further, she did not give
19
him chores regularly but only intermittently as the need may arise. Is Soledad's defense
meritorious? (4%)
Answer: NO. Soledad’s defense is not meritorious.
Article 139 of the Labor Code provides that no child below fifteen (15) years of age shall
be employed, except when he works under the sole responsibility of his parents or
guardian, and his employment does not in any way interfere with his schooling. She is
neither Kiko’s parent or guardian.
However, Article 107 of the Code Rules of Book III, Rule XII, Sections 2 and 3, and PD
603 on Working Children, provides that Children below sixteen (16) years of age may
be employed to perform light work which is not harmful to their safety, health or normal
development and which is not prejudicial to their studies. As a good Samaritan, this
provision should exculpate her from liability. The Php 200.00 daily allowance Soledad
gives Kiko may even allow the latter to study and grow to become a worthy member of
society.
Alternative Answer: No. Soledad’s defense is not meritorious because the work
rendered by Kiko at her house is in the form of physical exertion requiring
compensation. Hence, it is an employment which no person can contract with a minor
below 15 years of age (Art. 137, Labor Code). Her defense that his occasional work did
not expose him to hazardous conditions cannot take the place of the defense allowed
by law, viz., the employer is either parent or guardian. She is neither. Therefore, her
defense must fail.
7. APPRENTICESHIP AND LEARNER
7.1 Apprenticeship is the practical on-the-job training as supplemented by related

theoretical instruction (Art. 58 (a), LC).
7.2 Learners are persons hired as trainees in semi-skilled and other industrial occupations
which are non-apprenticeable and may be learned through practical training on the job
in a relatively short period of time which shall not exceed three months.
APPRENTICESHIP LEARNERSHIP
NATURE • highly-technical • semi-skill; non-

apprenticeable
PERIOD • SIX (6) months • THREE (3) months
COMITMT TO • At option of employer • At option of learner

HIRE
• May be paid or not; if • Must always be paid;
WAGES paid, 75% of minimum 75% of minimum
DOLE • Yes, DOLE approval is • No, DOLE approval not

Approval essential required; inspection
only.
• Yes, expenses for
DEDUCTION training deductible from • None.
for Expenses income tax
20
2017/2016 BAR QUESTIONS:
2017: Distinguish a learner from an apprentice. (4°/o)
2016: Differentiate learnership from apprenticeship with respect to the period of training,
type of work, salary and qualifications. (5%)
ANSWER: Distinction between learner and apprentice:
As to Nature: Learner is semi-skilled; whereas, Apprentice is highly technical.
As to Period: Learner is for three (3) months; whereas, Apprentice is not less than three
(3) months but not more than six (6) months.
As to commitment to employment: For the Learner, at the option of the Learner;

whereas, for the Apprentice, it is at the option of the employer.
As to necessity of TESDA approval: For Learner, not necessary. Only TESDA inspection
required; whereas, for Apprentice, prior approval by TESDA required.
As to deductibility of expenses: For Learner, no provision for deductibility; whereas, for

Apprentice, expenses of training deductible from income tax.
2015 LABOR BAR QUESTION:

Din Din is a single mother with one child. She is employed as a sales executive at a
prominent supermarket. She and her child live in Quezon City and her residence and
workplace are a 15-minute drive apart. One day, Din Din is informed by her boss that she
is being promoted to a managerial position but she is now being transferred to the Visayas.
Din Din does not want to uproot her family and refuses the offer. Her boss is so humiliated
by Din Din's refusal of the offer that she gives Din Din successive unsatisfactory
evaluations that result in Din Din being removed from the supermarket. Din Din
approaches you, as counsel, for legal advice. What would you advise her? (4%)
Answer: An employee cannot be promoted without his consent. A promotion that results
in the transfer of the employee that aims to lure the employee away from his present
position cannot be done without his consent. (PT & T vs. CA, G.R. No. 152057, 29 Sept.
2003.) There is no law that compels a person to accept a promotion. Hence, the exercise
by Din Din of her right to refuse should not be a cause for her Boss’ humiliation. For one
thing, the transfer would uproot her family. For another, the transfer is unreasonable,
inconvenient and prejudicial to her and her child. The vindictive actuation of her Boss in
giving her successive unsatisfactory evaluation is inconsistent with his prior offer of
promotion. Her boss acted in bad faith, insensibility and disdain; inflicted as a form of
punishment for her. Hence, it can thereforebe said that there is no just cause in the
removal of Din Din from the supermarket.
8. DISABLED WORKERS
8.1 Equal opportunity for employment.

• No disabled person shall be denied access to opportunities for suitable
employment. [R.A. 7277, Sec. 5: Magna Carta for Disabled Persons]
• Qualified disabled employees shall be subject to the same terms and conditions
of employment and the same compensation, privileges, benefits, fringe benefits,
incentives or allowances as a qualified able-bodied person.
21
• A worker is not necessarily considered as a handicapped worker if he is

capable, as an able-bodied worker, to function suitably in relation to the work to
which he was hired. (i.e. one-legged transcriptionist)
8.2 Incentives for employment of disabled workers (Sec. 2, RA 7277).
1. Private entities that employ disabled persons who meet the required skills or
qualifications either as regular employee, apprentice or learner, shall be entitled
to an additional deduction from their gross income, equivalent to 25% of the total
amount paid as salaries and wages to disabled persons; Provided, that the
following are complied with:
a. Presentation of proof certified by DOLE that disabled persons are under
their employ; and
b. Disabled employee is accredited with DOLE and DOH as to his disability,
skills and qualifications.
2. Private entities that improve or modify their physical facilities to provide

reasonable accommodation for disabled persons shall also be entitled to an
additional deduction from their taxable income, equivalent to 50% of the direct
costs of the improvements or modifications. This does not apply to improvements
required under B.P. Blg. 344.
8.3 2015-2018 CASES:
Southern Luzon Drug Corp. v. Department of Social Welfare and Development,

G.R. No. 199669, 25 April 2017, 809 PHIL 315-398 -- Undeterred, the petitioner
claims that R.A. No. 9442 is ambiguous particularly in defining the terms "disability"
and "PWDs," such that it lacks comprehensible standards that men of common
intelligence must guess at its meaning. It likewise bewails the futility of the given
safeguards to prevent abuse since government officials who are neither experts nor
practitioners of medicine are given the authority to issue identification cards that
authorizes the granting of the privileges under the law.
The Court disagrees. Section 4 (a) of R.A. No. 7277, the precursor of R.A. No. 9442,
defines "disabled persons" as follows:
(a) Disabled persons are those suffering from restriction or different

abilities, as a result of a mental, physical or sensory impairment, to
perform an activity in the manner or within the range considered
normal for a human being[.]
On the other hand, the term "PWDs" is defined in Section 5.1 of the IRR of R.A.
No. 9442 as follows:
5.1. Persons with Disability are those individuals defined under

Section 4 of [R.A. No.] 7277 [or] An Act Providing for the
Rehabilitation, Self-Development and Self-Reliance of Persons with
Disability as amended and their integration into the Mainstream of
Society and for Other Purposes. This is defined as a person suffering
from restriction or different abilities, as a result of a mental, physical
or sensory impairment, to perform an activity in a manner or within
the range considered normal for human being. Disability shall mean
(1) a physical or mental impairment that substantially limits one or
more psychological, physiological or anatomical function of an
individual or activities of such individual; (2) a record of such an
impairment; or (3) being regarded as having such an impairment.
22
The foregoing definitions have a striking conformity with the definition of "PWDs"
in Article 1 of the United Nations Convention on the Rights of Persons with
Disabilities which reads:
Persons with disabilities include those who have long-term

physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others. (Emphasis and
italics ours) ICHDca
The seemingly broad definition of the terms was not without good reasons. It
recognizes that "disability is an evolving concept" and appreciates the "diversity
of PWDs." The terms were given comprehensive definitions so as to
accommodate the various forms of disabilities, and not confine it to a particular
case as this would effectively exclude other forms of physical, intellectual or
psychological impairments. A statute is not rendered uncertain and void merely
because general terms are used therein, or because of the employment of terms
without defining them; much less do we have to define every word we use. At
any rate, the Court gathers no ambiguity in the provisions of R.A. No. 9442. As
regards the petitioner's claim that the law lacked reasonable standards in
determining the persons entitled to the discount, Section 32 thereof is on point
as it identifies who may avail of the privilege and the manner of its availment.
|||

For humanitarian reasons, a bank hired several handicapped workers to count and
sort out currencies. The handicapped workers knew that the contract was only for a
period of six-months and the same period was provided in their employment
contracts. After six months, the bank terminated their employment on the ground that
their contract has expired. This prompted the workers to file with the Labor Arbiter a
complaint for illegal dismissal. Will their action prosper? Why or why not? (5%)
ANSWER: No, their action for illegal dismissal will not prosper. A contract of
employment for a definite period terminates by its own terms at the end of such
period. (Brent School vs. Zamora, 181 SCRA 702 [1990].) Non-renewal of an
employment for a definite period does not involve dismissal but an expiration of term
(Felix Buenaseda, 240 SCRA 139 [1995].)
9. REPUBLIC ACT NO. 10151 ENTITLED “AN ACT ALLOWING THE

EMPLOYMENT OF NIGHT WORKERS, THEREBY REPEALING ARTICLES
130 AND 131 OF PRESIDENTIAL DECREE NUMBER FOUR HUNDRED
FORTY-TWO, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE
OF THE PHILIPPINES”
The general rule before was that women were prohibited from working the nightshift
between the hours of 10:00 p.m. and 6:00 a.m. of the following day, whether with or
without compensation. This prohibition has now been repealed by Republic Act No.
10151.
The new law applies to all workers who shall be employed or permitted or suffered to
work at night, with the exception of the following:
(a) pregnant women or nursing mothers, subject to certain conditions; and
(b) those workers employed in agriculture, stock raising, fishing, maritime transport and
inland navigation.
As defined, a night worker means “any employed person whose work requires
performance of a substantial number of hours of night work which exceeds a specified
23
limit”. The parameters and limits have yet to be fixed by the Department of Labor which
is presently working on the Implementing Rules.
Some salient features of this new law are as follows:
9.1 As regards women night workers, the law provides that women who are pregnant
or nursing their children for a period of at least sixteen (16) weeks before or after
childbirth, are to be allowed alternative to night work, such as: (a) transfer to day
work where this is possible; (b) the provision of social security benefits; or (c)
an extension of maternity leave.
• During the periods referred to above, a woman night worker shall NOT be
dismissed or given notice of dismissal, EXCEPT for just or authorized causes
provided for in this Code that are not connected with pregnancy, childbirth and
childcare responsibilities.
• During these instances, the women night worker shall not lose the benefits
regarding her status, seniority and access to promotion which may attach to
her regular night work position. These measures shall not have the effect of
REDUCING the protection and benefits connected with maternity leave under
existing laws.
• Pregnant women and nursing mothers may be allowed to work at night only if
a competent physician, other than the company physician, shall certify their
fitness to render night work, and specify, in the case of pregnant employees,
the period of the pregnancy that they can safely work.
9.2 Rights of the Night Workers:
• Right to health assessement. -- At their request, workers shall have the right to
undergo a health assessment without charge and to receive advice on how to
reduce or avoid health problems associated with their work on the following
instances:
(a) Before taking up an assignment as a night worker:
(b) At regular intervals during such an assignment: and
(c) If they experience health problems during such an assignment which are
not caused by factors other than the performance of night work.
With the exception of a finding of unfitness for night work, the findings of such
assessments shall not be transmitted to others without the workers' consent
and shall not be used to their detriment.
• Right to safe and healthful working conditions
• Right to compel employer to provide the following mandatory facilities:

(a) Suitable first aid facilities
(b) Adequate or reasonable facilities such as sleeping or resting quarters in the
establishment
(c) Adequate transportation from the work premises to the nearest point of
their residence subject to the exceptions and guidelines to be provided by
the DOLE
• Right to transfer to similar job. -- Night workers who are certified as unfit for night
work, due to health reasons, shall be transferred, whenever practicable, to a
similar job for which they are unfit to work. If such transfer to a similar job is not
practicable, these workers shall be granted the same benefits as other workers
who are unable to work, or to secure employment during such period. A night
worker certified as temporarily unfit for night work shall be given the same
protection against dismissal as other workers who are prevented from working
for reasons of health"
24
• Right to social services. -- Appropriate social services shall be provided for night
workers and, where necessary, for the workers performing night work."
9.3 Consultation on Night Work Schedules. - Before introducing work schedules

requiring the services of night workers, the EMPLOYER shall CONSULT the
workers' representatives/labor organizations concerned on the details of such
schedules and the forms of organization of night work that are best adapted to the
establishment and its personnel, as well as on the occupational health measures
and social services which are required. In establishments employing night workers,
consultation shall take place regularly.
9.4 AS AMENDED BY DOLE Department Order No. 119-12 [24 January 2012]
Implementing Rules of RA 10151 –
GENERAL RULE:
There should always be facilities for transportation and/or sleeping/resting
quarters for the night workers.
EXCEPTIONS:
• When there is already an existing company policy or CBA providing for an
equivalent or superior benefit i.e. there is already transportation allowance;
• Start or end of work rendered does not fall between 12mn to 5am;
• Where the workplace is located in an area that is accessible twenty four (24)
hours to public transportation; and
• Insufficient number or night workers to warrant the necessity for sleeping/resting
facilities.
10. REPUBLIC ACT 9710 ENTITLED “THE MAGNA CARTA OF WOMEN”. (By
Atty. Suzy Selleza)
Recognizing the economic, political, and sociocultural realities affecting women’s current
condition, Republic Act No. 9710, otherwise known as the Magna Carta of Women was
enacted along with its Implementing Rules effective on 15 September 2009 and 10 July
2010, respectively.
The promulgation of this law affirms the role of women in nation building, and recognizes
the substantive equality of women and men. As such, measures have been made to
promote empowerment of women, pursue equal opportunities for women and men,
ensure equal access to resources and to development results and outcome, and
eliminate discrimination and inequality in the economic, political, social and cultural life
of women and men.
10.1. Discrimination defined:
• any gender-based distinction, exclusion, or restriction which has the effect or

purpose of impairing or nullifying the recognition, enjoyment, or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field;
• any act or omission, including by law, policy, administrative measure, or practice,

that directly or indirectly excludes or restricts women in the recognition and
promotion of their rights and their access to and enjoyment of opportunities, benefits,
or privileges;
• a measure or practice of general application that fails to provide for mechanisms to

offset or address sex or gender-based disadvantages or limitations of women, as a
25
result of which women are denied or restricted in the recognition and protection of
their rights and in their access to and enjoyment of opportunities, benefits, or
privileges; or women, more than men are shown to have suffered the greater
adverse effects of those measures or practices; and
• discrimination compounded by or intersecting with other grounds, status, or

condition, such as ethnicity, age, poverty, or religion. (Section 4 [B])
10.2. Some pertinent benefits and protection granted:
• Protection from all forms of violence, including those committed by the State.
-- This includes the incremental increase in the recruitment and training of women in
government services that cater to women victims of gender-related offenses. It also
ensures mandatory training on human rights and gender sensitivity to all government
personnel involved in the protection and defense of women against gender-based
violence, and mandates local government units to establish a Violence Against
Women Desk in every barangay to address violence against women cases; (Section
12)
• Equal access and elimination of discrimination against women in education,

scholarships and training. This includes revising educational materials and
curricula to remove gender stereotypes and images, and outlawing the expulsion,
non-readmission, prohibiting enrollment and other related discrimination against
women students and faculty due to pregnancy outside of marriage; (Section 16)
2015-2018 CASES ON IMMORALITY:
ADA: POSSIBLE QUESTION FOR LABOR OR POLITICAL LAW (NOT ASKED

IN THE BAR AS PROBLEM-SOLVING QUESTION; ONLY MCQ IN 2012). --
Termination of pregnant employee in catholic schools. Position of school re:
academic freedom and religious nature of catholic schools to impose higher
standards of morality vs. strict implementation of Magna Carta of Women.
CHERYLL LEUS VS ST. SCHOLASTICA – WESTGROVE, G.R. No. 187226, 28

Jan 2015
Facts: Cheryll Santos Leus (petitioner) was hired by St. Scholastica's College
Westgrove (SSCW), a Catholic educational institution, as a non-teaching
personnel. Cheryll engaged in pre-marital sexual relations, got pregnant out of
wedlock, married the father of her child, and was dismissed by SSCW, in that order.
Issue: Whether or not Leus may be validly dismissed for pregnancy out of wedlock,
on account of immorality.
Supreme Court decision: Illegal dismissal.
In resolving the foregoing question, the Court will assess the matter from a strictly
neutral and secular point of view – the relationship between SSCW as employer
and the petitioner as an employee, the causes provided for by law in the termination
of such relationship, and the evidence on record.
The ground cited for the petitioner’s dismissal, i.e., pre-marital sexual relations and,
consequently, pregnancy out of wedlock, will be assessed as to whether the same
constitutes a valid ground for dismissal pursuant to Section 94(e) of the 1992 MRPS
[and the Labor Code].
As stated above, when the law refers to morality, it necessarily pertains

to PUBLIC AND SECULAR MORALITY, and not religious morality. Thus,
the proscription against “disgraceful or immoral conduct” under Section 94(e) of the
26
1992 MRPS, which is made as a cause for dismissal, must necessarily refer to
public and secular morality.
Accordingly, in order for a conduct to be considered as disgraceful or immoral, it

must be “‘detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society’ and not because the conduct is
proscribed by the beliefs of one religion or the other.”
As the Court held in Radam, there is no law which penalizes an unmarried

mother by reason of her sexual conduct or proscribes the consensual sexual
activity between two unmarried persons; that neither does such situation
contravene any fundamental state policy enshrined in the Constitution.
Admittedly, the petitioner is employed in an educational institution where the

teachings and doctrines of the Catholic Church, including that on pre-marital sexual
relations, is strictly upheld and taught to the students. That her indiscretion, which
resulted in her pregnancy out of wedlock, is anathema to the doctrines of the
Catholic Church.
However, viewed against the prevailing norms of conduct, the petitioner’s

conduct cannot be considered as disgraceful or immoral; such conduct is not
denounced by public and secular morality. It may be an unusual arrangement,
but it certainly is not disgraceful or immoral within the contemplation of the
law.
To stress, pre-marital sexual relations between two consenting adults who

have no impediment to marry each other, and, consequently, conceiving a
child out of wedlock, gauged from a purely public and secular view of
morality, does not amount to a disgraceful or immoral conduct under Section
94(e) of the 1992 MRPS."
CAPIN-CADIZ V. BRENT HOSPITAL AND COLLEGES, INC., G.R. No. 187417,

24 February 2016, 781 PHIL 610-643
Facts: Cadiz was the Human Resource Officer of respondent Brent Hospital and
Colleges, Inc. (Brent) at the time of her indefinite suspension from employment in
2006. The cause of suspension was Cadiz's Unprofessionalism and Unethical
Behavior Resulting to Unwed Pregnancy. It appears that Cadiz became pregnant
out of wedlock, and Brent imposed the suspension until such time that she marries
her boyfriend in accordance with law. Cadiz then filed with the Labor Arbiter (LA)
a complaint for Unfair Labor Practice, Constructive Dismissal, Non-Payment of
Wages and Damages with prayer for Reinstatement,
Issue: May Brent validly impose indefinite suspension conditioned upon Cadiz
marrying her boyfriend?
Supreme Court: NO.
With particular regard to women, Republic Act No. 9710 or the Magna Carta of
Women protects women against discrimination in all matters relating to marriage
and family relations, including the right to choose freely a spouse and to enter
into marriage only with their free and full consent.
Weighed against these safeguards, it becomes apparent that Brent's condition is

coercive, oppressive and discriminatory. There is no rhyme or reason for it. It
forces Cadiz to marry for economic reasons and deprives her of the freedom to
choose her status, which is a privilege that inheres in her as an intangible and
inalienable right.
27
While a marriage or no-marriage qualification may be justified as a "bona

fide occupational qualification," Brent must prove two factors necessitating its
imposition, viz.: (1) that the employment qualification is reasonably related to the
essential operation of the job involved; and (2) that there is a factual basis for
believing that all or substantially all persons meeting the qualification would be
unable to properly perform the duties of the job. Brent has not shown the presence
of neither of these factors. Perforce, the Court cannot uphold the validity of said
condition.
Moreover, the totality of the circumstances of this case does not justify the
conclusion that Cadiz committed acts of immorality. Similar to Leus, Cadiz and her
boyfriend were both single and had no legal impediment to marry at the time she
committed the alleged immoral conduct. In fact, they eventually married on April
15, 2008. xxx As declared in Leus, "there is no law which penalizes an unmarried
mother by reason of her sexual conduct or proscribes the consensual sexual
activity between two unmarried persons; that neither does such situation
contravene[s] any fundamental state policy enshrined in the Constitution."
The fact that Brent is a sectarian institution does not automatically subject Cadiz
to its religious standard of morality absent an express statement in its manual of
personnel policy and regulations, prescribing such religious standard as gauge as
these regulations create the obligation on both the employee and the employer to
abide by the same. Brent, likewise, cannot resort to the MRPS because the Court
already stressed in Leus that "premarital sexual relations between two consenting
adults who have no impediment to marry each other, and, consequently,
conceiving a child out of wedlock, gauged from a purely public and secular view of
morality, does not amount to a disgraceful or immoral conduct under Section 94
(e) of the 1992 MRPS.
• Non-discrimination in employment in the field of military, police and other

similar services.
• GYNECOLOGICAL Leave benefits of two (2) months with full pay based on
gross monthly compensation, for women employees who undergo surgery
caused by gynecological disorders, provided that they have rendered continuous
aggregate employment service of at least six (6) months for the last twelve (12)
months; (Section 21)
AS AMENDED BY DOLE Department Order No. 112-A [22 May 2012] providing
for the guidelines on the Implementation of the leave benefit for Women
Employees in the private sector. -- Ada
DOLE inserted a new provision under Section 4, which provides: “The special leave
benefit. – The two (2) months special leave benefit is the maximum period of leave
with pay that a woman may avail of under RA 9710. For purposes of determining
the period of leave with pay that will be allowed to a woman employee, the
certification of a competent physician as required period for recuperation shall
be controlling.”
Additionally, Section 6 of the DO 112-A also provides as follows: “Frequency of

availment. – A woman employee can avail of the special leave benefit for every
instance of surgery due to gynecological disorder for a maximum total period of two
(2) months per year.”
EFFECT: The total recovery period for a woman employee is limited to two
months per year regardless of the frequency of surgical operations that a
female employee might undergo.
28
10.3. Notes: In addition to the two-month gynecological leave, please take note that the
woman employee may, in certain cases, avail of additional leaves, to wit:
10.3.1 Battered Woman Leave under Republic Act No. 9262, ANTI-VIOLENCE
AGAINST WOMEN AND CHILDREN:
Allows the victim of violence, which may be physical, sexual, or

psychological, to apply for the issuance of a protection order that will shield
her from further violence and provide her related reliefs.
SECTION 43. Entitlement to Leave. – Victims under this Act shall be

entitled to take a paid leave of absence up to ten (10) days in addition to
other paid leaves under the Labor Code and Civil Service Rules and
Regulations, extendible when the necessity arises as specified in the
protection order.
Any employer who shall prejudice the right of the person under this section
shall be penalized in accordance with the provisions of the Labor Code and
Civil Service Rules and Regulations. Likewise, an employer who shall
prejudice any person for assisting a co-employee who is a victim under this
Act shall likewise be liable for discrimination.
Conditions for entitlement
• The victim must be an employee. If she is such, she is entitled to a paid

leave of up to 10 days in addition to other paid leaves under the Labor
Code, other laws and company policies
• The employee has to submit a certification from the Punong Barangay or
Kagawad or prosecutor or Clerk of Court that an action under RA 9262
has been filed and is pending.
10.3.2 Solo Parent Leave under Republic Act No. 8972, SOLO PARENTS’
WELFARE ACT OF 2000:
SECTION 8. Parental Leave. — In addition to leave privileges under

existing laws, parental leave of not more than seven (7) working days every
year shall be granted to any solo parent employee who has rendered service
of at least one (1) year.
2018 BAR QUESTION:

Nestor and Nadine have been living in for the last 10 years without the benefit of
marriage. Their union has produced four children. Nadine was three months
pregnant with her 5th child when Nestor left her for another woman. When Nadine
was eight months pregnant with her 5th child, she applied for maternity leave
benefits. Her employer refused on the ground that this was already her 5th
pregnancy and that she was only living in with the father of her child, who is now in
a relationship with another woman. When Nadine gave birth, Nestor applied for
paternity leave benefits. His employer also denied the application on the same
grounds that Nadine's employer denied her application.
(a) Can Nadine's employer legally deny her claim for maternity benefits? (2.5%)
SUGGESTED ANSWER: Yes, Nadine is not entitled to maternity benefits since it is

only available for the first four (4) deliveries miscarriages. On the other hand, her
employer cannot refuse on the ground that Nadine was only living in with her partner
since a valid marriage is not a condition for the grant of maternity leave benefits.
29
(b) Can Nestor's employer legally deny his claim for paternity benefits? (2.5%)
SUGGESTED ANSWER: Yes, Nestor is not entitled to paternity benefits since it is

only available for the first four (4) deliveries or miscarriages of his legitimate spouse
with whom he is living with.
2016 BAR QUESTION:

Tess, a seamstress at Marikit Clothing Factory, became pregnant. Because of
morning sickness, she frequently absented herself from work and often came to the
factory only four (4) days a week. After two (2) months, the personnel manager told
her that her habitual absences rendered her practically useless to the company and,
thus, asked her to resign. She begged to be retained, citing her pregnancy as reason
for her absences. Tess asked for leave of absence but her request was denied. She
went on leave nevertheless. As a result, she was thus dismissed for going on leave
without permission of management.
Tess filed a complaint for illegal dismissal. The company's defense: she was legally
dismissed because of her numerous absences without leave and not because of her
pregnancy. On the other hand, Tess argues that her dismissal was an act of
discrimination, based as it was on her pregnancy which the company treated as a
disease. Whose position is meritorious-the company's or Tess'? Explain. (5%)
ANSWER: I will rule for Tess. Both the Labor Code and the Magna Carta of Women
prohibit employers to terminate a woman on account of her pregnancy. Tess’
absences was admittedly due to her pregnancy, for which reason she filed for a leave
of absence which was denied.This is violative of her rights under the Labor Code
and the Magna Carta, tantamount to discrimination on account of her sex.

Luisa is an unwed mother with 3 children from different fathers. In 2004, she became
a member of the Social Security System (SSS). That same year, she suffered a
miscarriage of a baby out of wedlock from the father of her third child. She wants to
claim maternity benefits under the SSS Act. Is she entitled to claim? (3%)
Answer: Maternity leave benefit applies to all female employees whether married or
unmarried. She is entitled to the maternity benefit provided she has given the
required notification to the SSS thru her employer, and her employer must have paid
at least 3 monthly contribution to the SSS within the 12-month period immediately
before the date of the miscarriage; otherwise, she would not be entitled to said
benefit.
2013 BAR QUESTION:

Because of the stress in caring for her four (4) growing children, Tammy suffered a
miscarriage late in her pregnancy and had to undergo an operation. In the course of
the operation, her obstetrician further discovered a suspicious-looking mass that
required the subsequent removal of her uterus (hysterectomy). After surgery, her
physician advised Tammy to be on full bed rest for six (6) weeks. Meanwhile, the
biopsy of the sample tissue taken from the mass in Tammy's uterus showed a
beginning malignancy that required an immediate series of chemotherapy once a
week for four (4) weeks.
(A) What benefits can Tammy claim under existing social legislation? (4%)
Maternity Leave (SSS law) andGynecological Leave (Magna Carta of Women)
(B) What can Roger-Tammy's 2nd husband and the father of her two (2) younger
children -claim as benefits under the circumstances? (4%)
30
Paternity Leave – if lawfully married to Tammy and cohabiting with her at the
time of the miscarriage.
11. EMPLOYEE BENEFITS; RETIREMENT.

11.1 RETIREMENT AGE
GENERAL RULE: R.A. 7641

a. OPTIONAL at 60 years with minimum 5 years of service
b. MANDATORY at 65 years, no service requirement
EXCEPTION:
Where the company provides for a Retirement Plan with earlier retirement age,
then the company’s Retirement Plan will apply
11.2 RETIREMENT BENEFITS
GENERAL RULE: R.A. 7641

½ month for every year of service (expanded concept per Sec 1, RA 7641)
Expanded concept: 22.5 days (basis: Capitol Wireless vs. Confesor)

15 days + 5 days service incentive leave + 2.5 days prorated 13th month pay
EXCEPTION:
Where the company provides for a Retirement Plan with better benefits, then the
company’s Retirement Plan will apply
11.3 CASES:
Goodyear vs. Marina Angus, G.R. No. 185499, 14 November 2014. -- (already
asked last year 2018 Bar)
Question: Is an employee who was terminated for authorized causes

(redundancy), also entitled to avail of early retirement benefits? Otherwise
stated, may an employee be paid both retirement and separation pay benefits?
Answer: YES, as a general rule. Exception: When there is an explicit provision

in the company rules prohibiting the availment of both .
Employees are legally entitled to recover both separation pay and retirement
benefits in the absence of a specific prohibition in the Retirement Plan or CBA.
In such an instance where both the company rules or CBA and the retirement
plan are silent, an employee is not barred from claiming his early retirement
benefits, even if he/she had already received his retrenchment pay, and has
executed a Quitclaim to that effect. This must be so because he is legally entitled
thereto as a general rule.
a) DIFFERENCE BETWEEN SEPARATION PAY ARISING FROM

TERMINATION OF EMPLOYMENT AND RETIREMENT.
General Milling Corporation vs. Viajar, G.R. No. 181738, 30 January 2013,
Citing Quevedo vs. Benguet Electric Cooperative, Inc., 599 SCRA 438
[2009]. -- While termination of employment and retirement from service are
common modes of ending employment, they are mutually exclusive, with
varying judicial bases and resulting benefits. Retirement from the service is
contractual (i.e. based on the bilateral agreement of the employer and
employee), while termination of employment is statutory (i.e. governed by the
Labor Code and other related laws as to its grounds, benefits and procedure.
31
The benefits resulting from termination vary, depending on the cause. For
retirement, Article 287 of the Labor Code gives leeway to the parties to
stipulate above a floor of benefits.
b. DIFFERENCE BETWEEN VOLUNTARY AND INVOLUNTARY

RETIREMENT. –
Voluntary retirement cuts employment ties leaving no residual employer

liability; involuntary retirement amounts to a discharge, rendering the
employer liable for termination without cause. The employee’s intent is the
focal point of analysis. In determining such intent, the fairness of the process
governing the retirement decision, the payment of stipulated benefits, and the
absence of badges of intimidation or coercion are relevant parameters. (ibid.)
2015 CASE: Zenaida Paz vs. Northern Tobacco Redrying Co., Inc., et al.,
G.R. No. 199554, 18 February 2015. -- If “optional retirement” is involuntary,
the employee shall be deemed to be illegally dismissed.
c. RESIGNATIONS vs. TERMINATION vs STRAINED RELATIONS vs

RETIREMENT
RESIGNATION – It is the voluntary act of employees who are compelled by

reasons to disassociate themselves from their employment. It must be done
with intention of relinquishing the office, accompanied by the act of
abandonment. Where evidence reveals otherwise, then illegal dismissal.
STRAINED RELATIONS – Where reinstatement is no longer desirable or

viable in view of strained relations between the parties, then separation pay is
an acceptable alterative to reinstatement. Computation: one month for every
year of service, computed from date of hiring until finality of the Decision
finding for illegal termination.
d. Early retirement is the option of the EMPLOYEE. Eastern Shipping Lines,

Inc. vs. Ferrer D. Antonio, G.R. No. 171587, 13 October 2009. – The age
of retirement is primarily determined by the existing agreement or employment
contract. In the absence of such agreement, the retirement age shall be fixed
by law. Under the aforecited law, the mandated compulsory retirement age is
set at 65 years, while the minimum age for optional retirement is set at 60
years. Under Paragraph B of the retirement plan, a shipboard employee, upon
his written request, may retire from service if he has reached the eligibility age
of 60 years. In this case, the option to retire lies with the employee.
Records show that respondent was only 41 years old when he applied for
optional retirement, which was 19 years short of the required eligibility age.
Thus, he cannot claim optional retirement benefits as a matter of right.
e. IMPORTANT CASE: MAY RETIREMENT FUND FOR THE EMPLOYEES BE

APPLIED TO OUTSTANDING LOANS OF THE COMPANY? Metrobank vs.
Board of Trustees of Riverside Mills Provident and Retirement Fund, GR
No. 17695, 08 Sept 2010. --
Answer: NO. Employees trusts or benefits plans are intended to provide

economic assistance to employees upon occurrence of old age, retirement,
death, sickness or disability. Here, while the Plan provides for a reversion of
the Fund to the employer RMC, this cannot be done until all the liabilities of
the Plan have been paid. And when RMC ceased operations in 1984, the
Fund became liable not only for the benefits of the qualified retirees at the
time of the RMC closure, but also of those who were separated from work as
a consequence of the closure, per the Retirment Plan itself.
32
f. IMPORTANT CASE: MAY THE EMPLOYER DEDUCT COST OF TRAINING

FROM THE RETIREMENT BENEFITS OF THE EMPLOYEE? Bibiano C.
Elegir vs. Philippine Airlines, Inc. G.R. No. 181995, 16 July 2012.
ANSWER: YES! By carrying over the same stipulation in the present CBA,
both PAL and ALPAP recognized that the company’s effort in sending pilots for
training abroad is an investment which necessarily expects a reasonable return
in the form of service for a period of at least three (3) years. This stipulation
had been repeatedly adopted by the parties in the succeeding renewals of their
CBA, thus validating the impression that it is a reasonable and acceptable term
to both PAL and ALPAP. Consequently, the petitioner cannot conveniently
disregard this stipulation by simply raising the absence of a contract expressly
requiring the pilot to remain within PAL’s employ within a period of 3 years after
he has been sent on training. The supposed absence of contract being
raised by the petitioner cannot stand as the CBA clearly covered the
petitioner’s obligation to render service to PAL within 3 years to enable
it to recoup the costs of its investment. Further, to allow the petitioner to
leave the company before it has fulfilled the reasonable expectation of service
on his part will amount to unjust enrichment.
2018 BAR QUESTION:

Narciso filed a complaint against Norte University for the payment of retirement benefits
after having been a part-time professional lecturer in the same school since 1974.
Narciso taught for two semesters and a summer term for the school year 1974-1975,
took a leave of absence from 1975 to 1977, and resumed teaching until 2003. Since
then, his contract has been renewed at the start of every semester and summer, until
November 2005 when he was told that he could no longer teach because he was already
75 years old. Norte University also denied Narciso's claim for retirement benefits stating
that only full-time permanent faculty, who have served for at least five years immediately
preceding the termination of their employment, can avail themselves of post-
employment benefits. As part-time faculty member, Narciso did not acquire permanent
employment status under the Manual of Regulations for Private Schools, in relation to
the Labor Code, regardless of his length of service.
(a) Is Narciso entitled to retirement benefits? (2.5%)
SUGGESTED ANSWER: As a part-time employee with fixed-term employment, Narciso

is entitled to retirement benefits. Book VI, Rule II of the Rules Implementing the Labor
Code states that the rule on retirement shall apply employees in the private sector,
regardless of their position, designation or status and irrespective of the method by
which their wages are paid, except to those specifically exempted. Part-time faculty
members do not fall under the exemption. Based also on the Retirement Pay Law, and
its Implementing Rules, part-time faculty members of private educational institutions are
entitled to full retirement benefits even if the services are not continuous, and even if
their contracts have been renewed after their mandatory age of retirement.
ALTERNATIVE ANSWERS: (a) Under Art 302 (287) of the Labor Code as amended
by Republic Act No. 7641, part-timers are entitled to retirement benefits (De La Salle
University v. Juanito C. Bernardo G.R. No. 190809, Feb 13, 2017).
ANOTHER ALTERNATIVE ANSWER: (a) Narciso is not entitled to his retirement

benefit anymore because of prescription. Money claims prescribes in 3 years (Art. 306).
Narciso’s retirement claim accrued in 2005, the year he was considered retired by the
school. He should have filed his claim in the year 2008.
(b): If he is entitled to retirement benefits, how should retirement pay be

computed in the absence of any contract between him and Norte University
providing for such benefits? (2.5%)
33
SUGGESTED ANSWER: In the absence of any contract providing for higher retirement
benefits, private educational institutions, including Norte University, are obligated to set
aside funds for the retirement pay of all its part-time faculty members. A covered
employee who retires pursuant to the Retirement Pay Law shall be entitled pay
equivalent to at least one-half (1/2) month salary for every year of service, a fraction of
at least six (6) months being considered as one whole year. One-half month salary shall
mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash
equivalent of not more than five (5) days service incentive leaves. In total, this should
amount to 22.5 days for every year of service (De La Salle Araneta University v. Juanito
C. Bernardo, G.R. No. 190809, February 13, 2017).
2013 BAR QUESTION:

After thirty (30) years of service, Beta Company compulsorily retired Albert at age 65
pursuant to the company's Retirement Plan. Albert was duly paid his full retirement
benefits of one (1) month pay for every year of service under the Plan. Thereafter, out
of compassion, the company allowed Albert to continue working and paid him his old
monthly salary rate, but without the allowances that he used to enjoy.
After five (5) years under this arrangement, the company finally severed all employment
relations with Albert; he was declared fully retired in a fitting ceremony but the company
did not give him any further retirement benefits. Albert thought this treatment unfair as
he had rendered full service at his usual hours in the past five (5) years. Thus, he filed
a complaint for the allowances that were not paid to him, and for retirement benefits for
his additional five (5) working years, based either on the company's Retirement Plan or
the Retirement Pay Law, whichever is applicable.
(A) After Albert's retirement at age 65, should he be considered a regular employee
entitled to all his previous salaries and benefits when the company allowed him to
continue working? (4%)
(B) Is he entitled to additional retirement benefits for the additional service he rendered
after age 65? (4%)
ANSWER:
(A) He would be considered a Contractual Employee, not a regular employee. His
salaries and benefits will be in accordance with the stipulations of the contract he
signed with the company.
(B) No. He cannot be compulsorily retired twice in the same company.
H. RECRUITMENT AND PLACEMENT

1. DISTINCTION BETWEEN LICENSE AND AUTHORITY:
➢ LICENSE means a document issued by the Department of Labor, authorizing a

person or entity to operate a private employment agency.
➢ AUTHORITY means a document issued by the Department of Labor, authorizing a

person or association to engage in recruitment and placement activities as a private
recruitment entity.
2. DISTINCTION BETWEEN “PRIVATE EMPLOYMENT AGENCY” VS. “PRIVATE

RECRUITMENT AGENCY” VS. “SHIPPING OR MANNING AGENCY”
➢ PRIVATE EMPLOYMENT AGENCY: Refers to any person or entity engaged in the

recruitment and placement of workers FOR A FEE, which is charged directly or
indirectly, from the workers, or employers, or both.
34
A licensed employment agency may charge and collect fees for

employment assistance if the worker has obtained employment through
the agency's efforts.
➢ PRIVATE RECRUITMENT AGENCY: Refers to any person or entity engaged in the

recruitment and placement of workers, locally or overseas, WITHOUT CHARGING
ANY FEE directly or indirectly, from the workers, or employers.
Submission by Private Recruitment agency of a VERIFIED

UNDERTAKING to the POEA that it will assume JOINT AND
SOLIDARY LIABILITY with the employer for all claims and liabilities
which might arise in connection with the implementation of employment
➢ MANNING OR SHIPPING AGENCY: Refers to any person, partnership or corporation

duly licensed by DOLE to recruit seafarers for vessels plying international waters and
for related maritime activities.
3. TYPES OF ILLEGAL RECRUITMENT
• SIMPLE (BY LICENSEE): illegal recruitment committed by a licensee or holder of

authority against one or two persons only if they commit any of the acts enumerated
under Section 6 of Republic Act No. 8042.
• NON-LICENSEE: committed by a person who has neither a license nor authority.
• SYNDICATED: that carried out by a group of three (3) or more persons in conspiracy
or confederation with one another.
• LARGE SCALE or qualified: that committed against 3 or more persons, individually

or as a group.
4. ILLEGAL RECRUITMENT AS ECONOMIC SABOTAGE, if any of the qualifying

circumstances exist or when committed:
• BY A SYNDICATE – If it is carried out by a group of 3 or more persons conspiring

and/or confederating with one another;
• IN LARGE SCALE – If it is committed against 3 or more persons individually or as a

group.
5. ILLEGAL RECRUITMENT; elements:
Recruitment and placement refers to the act of canvassing, enlisting, contracting,

transporting, utilizing, hiring or procuring workers, and includes referrals, contract
services, promising or advertising for employment, LOCALLY OR ABROAD, whether for
profit or not. When a person or entity, in any manner, offers or promises for a fee
employment to two or more persons, that person or entity shall be deemed engaged in
recruitment and placement.
Article 38(a) of the Labor Code, as amended, specifies that recruitment activities
undertaken by non-licensees or non-holders of authority are deemed illegal and
punishable by law.
And when the illegal recruitment is committed against three or more persons,
individually or as a group, then it is deemed committed in large scale and carries with it
stiffer penalties as the same is deemed a form of economic sabotage.
But to prove illegal recruitment, it must be shown that the accused, without being duly
authorized by law, gave complainants the distinct impression that he had the power or
35
ability to send them abroad for work, such that the latter were convinced to part with
their money in order to be employed. It is important that there must at least be a promise
or offer of an employment from the person posing as a recruiter, whether locally or
abroad.
Illegal recruitment is committed when two (2) elements concur: First, the offender
does not have the required license or authority to engage in the recruitment and
placement of workers. Second, the offender undertook (1) recruitment and placement
activity defined under Article 13(b) of the Labor Code or (2) any prohibited practice under
Art. 34 of the same code. Illegal recruitment is qualified into large scale, when three or
more persons, individually or as group, are victimized.
Art. 13(b) of the Labor Code defines recruitment and placement, as follows: x x x [A]ny
act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring
workers, and includes referrals, contract services, promising or advertising for
employment, locally or abroad, whether for profit or not: Provided, That any person or
entity which, in any manner, offers or promises for a fee employment to two or more
persons shall be deemed engaged in recruitment and placement.
After a circumspect review of the records, the Court is fully convinced as to accused-
appellants guilt of the crime of illegal recruitment in large scale. The first element is
present. Accused-appellant had not shown any license to recruit or engage in placement
activities. As found by the trial court, the POEA no less initiated the filing of the
complaints against accused-appellant, a reality which argues against the existence of
such license or authority.
Accused-appellant cannot plausibly escape liability for her criminal acts by conveniently
pointing to and passing the blame on Capawan as the illegal recruiter. Like the trial court,
we entertain serious doubts on this self-serving and gratuitous version of accused-
appellant. What is more, her denials cannot prevail over the positive declaration of the
prosecution witnesses. It is basic that affirmative testimony of persons who are
eyewitnesses of the events or facts asserted easily overrides negative testimony
6. Illegal recruitment as distinguished from estafa
A person convicted for illegal recruitment under Labor Code can be convicted for violation
of the Revised Penal Code provisions on estafa provided the elements of the crime are
present.
Estafa under Article 315, par.2 of the RPC is committed by any person who defrauds
another by using fictitious name, or falsely pretends to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by means
of similar deceits executed prior to or simultaneously with the commission of the fraud.
The offended party must have relied on the false pretense, fraudulent act or fraudulent
means of the accused-appellant and as a result thereof, the offended party suffered
damages.
7. Persons criminally liable for the above offenses: [R.A. 10022, Sec.4]
▪ Individuals: principals, accomplices and accessories.
▪ Juridical Persons: the officers having ownership, control, management or direction

of their business that are responsible for the commission of the offense and the
responsible employees/agents thereof shall be liable.
▪ Where illegal recruitment is proved but the elements of “large scale” or “syndicate” are
absent, the accused can be convicted only of “simple illegal recruitment”. (People v.
Sagun, G.R. No. 110554, 19 February 1999)
36
8. Nature of liability of local recruitment agency vs. foreign principal:
• Local Agency is solidarily liable with foreign principal.

• Severance of relations between local agent and foreign principal does not affect
liability of local recruiter.
When a law or a provision of law is null because it is inconsistent with the Constitution,
the nullity cannot be cured by reincorporation or reenactment of the same or a similar law
or provision. A law or provision of law that was already declared unconstitutional remains
as such unless circumstances have so changed as to warrant a reverse conclusion.
9. THREE (3) REQUIREMENTS THAT MUST CONCUR FOR THE COMPLETE

TERMINATION OF THE EMPLOYMENT CONTRACT OF SEAFARERS.
a) Termination due to expiration or other reasons/ causes;

b) Signing off from the vessels; and
c) Arrival at the point of hire.
The obligations and liabilities of the local agency and its foreign principal do not end upon
the expiration of the contracted period as they were duty bound to repatriate the
seaman to the point of hire to effectively terminate the contract of employment.
The original POEA-approved employment contract subsisted and, thus, the solidary
liability of the agent with the principal continued. Any side agreement of an overseas
contract worker with her foreign employer is void as against public policy. The said side
agreement cannot supersede the POEA-SEC, and the solidary liability subsists in
accordance with section 10 of RA8042. APQ Ship Management Co., Ltd., et al vs.
Angelito L. Caseñas, et al. G.R. No. 197303, 04 June 2014
The theory of imputed knowledge ascribes the knowledge of the agent, Sunace,
to the principal, employer Xiong, AND NOT THE OTHER WAY AROUND. The
knowledge of the principal-foreign employer cannot, therefore, be imputed to its agent
Sunace. There being no substantial proof that Sunace knew of and consented to be
bound under the 2-year employment contract extension of the domestic helper Divina,
it cannot be said to be privy thereto. As such, it and its “owner” cannot be held solidarily
liable for any of Divina’s claims arising from the 2-year employment extension.
10. 2015-2018 CASES:
➢ People v. Molina, G.R. No. 229712, 28 February 2018. -- The Court agrees with the
Court of Appeals that accused-appellant cannot escape from liability for large
scale illegal recruitment on the ground that she did not recruit private complainants and
participate in their transactions with Juliet Pacon to whom complainants made their
payments. Grounds: (a) the recruitment was made in the recruitment agency of which
accused-appellant is the President; (b) substantial testimonial evidence showing that
accused-appellant was at the agency and she was introduced to them by Pacon as the
owner of the agency, and that accused even assured them that they would be deployed
for employment soon; (c) Private respondent Delos Santos also testified that he saw
accused-appellant at the agency and Pacon told him that she was the boss and owner of
the agency; (d) further, the cash vouchers, evidencing the payments made by private
complainants to Pacon, contained the name of the recruitment agency or its office address
in Makati City, showing that it was received by Pacon in behalf of the agency whose
President was accused-appellant.
Since illegal recruitment in large scale is an offense involving economic sabotage under
Section 6, paragraph (m) of R.A. No. 8042, the Court of Appeals correctly affirmed the
decision of the trial court imposing upon accused-appellant the penalty of life
imprisonment and a fine of P500,000.00 under Section 7 (b) of R.A. No. 8042.
37
Although R.A. No. 10022, which took effect on May 7, 2010, amended the fine under
Section 7 (b) of R.A. No. 8042 and increased it to "not less than Two million pesos
(P2,000,000.00) nor more than Five million pesos (P5,000,000.00) x x x
if illegal recruitment constitutes economic sabotage," the said amendment does not
apply in this case because the offense was committed in 2006, before the
amendment took effect in May 2010.
➢ People v. De Guzman, G.R. No. 212527 (Notice), 20 September 2017. --

llegal recruitment includes the act of enlisting or promising for employment abroad, failing
to deploy without valid reason and/or failing to reimburse expenses incurred in connection
with the documentation and processing for purposes of deployment, without the worker's
fault, whether for profit or not, undertaken by a non-licensee or non-holder of authority to
recruit; and committed in large scale against three (3) or more, individually or as a group.
Ultimately, the issue comes down to the credibility of the private complainants for they
were unable to produce receipts signed by the appellant (albeit Rita Bilanggo produced a
pera padala receipt addressed to Liza O. Averion, who is at large). It is settled that where
the issue is on credibility, the findings of the trial court will generally not be disturbed. The
trial court has the advantage of hearing the witnesses and observing their conduct during
the trial, circumstances that carry great weight in appreciating credibility. The trial court is
thus in a better position to settle such an issue.
On penalty. -- Under Section 6, R.A. No. 8042, illegal recruitment when committed in large
scale shall be considered as an offense involving economic sabotage. Accordingly, it shall
be punishable by life imprisonment and a fine of not less than P500,000 nor more than
P1,000,000. The law provides further that the maximum penalty shall be imposed
if illegal recruitment is committed by a non-licensee or non-holder of authority. The trial
court imposed the penalty provided by law, accordingly.
|
➢ To substitute POEA-certified contract constitutes illegal recruitment. Princess Joy

Placement and General Services vs. Binalla, G.R. No. 197005, 04 June 2014. Brion
➢ Where seafarer’s contract expired while vessel was still at sea. Antonio E. Unica vs.
Anscor Swire Ship Management Corp., G.R. No. 184318, 12 Feb 2014. -- Unica under
his contract was deployed for a period of nine (9) months from January 29, 2000 to
October 25, 2000. When his contract expired, the vessel was still at sea. Hence, he was
repatriated only on November 14, 2000. Unica contends that since he was allowed to stay
in the vessel for another twenty (20) days, there was an implied renewal of his contract of
employment. Thus, when he was repatriated without a valid cause, he was illegally
dismissed.
Issue: Was there an implied renewal of the contract of employment?
Answer: No. Seafarers are contractual employees. Thus, when his contract expired, his
employment is automatically terminated, there being no mutually agreed renewal.
However, he is entitled to be paid his wages after the expiration of his contract until
the vessels arrival at a convenient port. Section 19 of the Standard Terms and
Conditions Governing the Employment of Filipino Seafarers on-Board Ocean Going
Vessels provides as follows:
“REPATRIATION. A. If the vessel is outside the Philippines upon the expiration of the
contract, the seafarer shall continue his service on board until the vessel’s arrival at a
convenient port and/or after arrival of the replacement crew; provided that, in any case,
the continuance of such service shall not exceed three months. The seafarer shall be
entitled to earned wages and benefits as provided in his contract.”
2017 BAR QUESTION:

A. Andrew Manning Agency (AMA) recruited Feliciano for employment by lnvictus
Shipping, its foreign principal. Meantime, AMA and lnvictusShipping terminated their
agency agreement. Upon his repatriation following his premature termination, Feliciano
38
claimed from AMA and lnvictusShipping the payment of his salaries and benefits for the
unserved portion of the contract. AMA denied liability on the ground that it no longer
had an agency agreement with lnvictusShipping. Is AMA correct? Explain your answer.
(3%)
B. As a rule, direct hiring of migrant workers is not allowed. What are the exceptions?
Explain your answer. (2.5%)
C. Phil, a resident alien, sought employment in the Philippines. The employer, noticing
that Phil was a foreigner, demanded that he first secures an employment permit from
the DOLE. Is the employer correct? Explain your answer. (2.5%)
ANSWERS:
(A) AMA is not correct. The liability of the principal/employer and the
recruitment/placement agency is joint and several. Such liability shall continue during
the entire period or duration of the employment contract and shall not be affected by
any substitution, amendment or modification made locally or in a foreign country of
the said contract. (Section 10, RA 8042, as amended by Sec. 7 of RA 10022.)
(B) The exceptions are direct hiring by members of the diplomatic corps, international
organizations and such other employers as may be allowed by the Secretary of Labor.
(Book I, Title I, Chapter 1, Art. 18, Ban on direct-hiring, Labor Code of the Philippines.)
POEA Rules, Part III Rule III, Sec. 8) Sec. 1-9, DO 75-06
© The employer is not correct. Under DOLE department Order No. 75-06, resident foreign
nationals are exempted from securing an employment permit.
2015 BAR QUESTION:

A. Rocket Corporation is a domestic corporation registered with the SEC, with 30% of its
authorized capital stock owned by foreigners and 70% of its authorized capital stock
owned by Filipinos. Is Rocket Corporation allowed to engage in the recruitment and
placement of workers, locally and overseas? Briefly state the basis for your answer.
(2%)
B. When does the recruitment of workers become an act of economic sabotage? (2%)
ANSWERS:
A. No. Article 27 of the Labor Code Law Code mandates that 75% of Rocket
Corporation’s authorized and voting capital stock must be owned and controlled by
Filipino citizens.
B. Under Article 38(b) of the Labor Code, the recruitment of workers becomes an act of
economic sabotage when (a) the illegal recruitment is committed by a syndicate; and
(b) illegal recruitment is commitment in a large scale.
2014 BAR QUESTION:

Lina has been working as a steward with a Miami, U.S.A.-based Loyal Cruise Lines for
the past 15 years. She was recruited by a local manning agency, Macapagal Shipping,
and was made to sign a 10-month employment contract every time she left for Miami.
Macapagal Shipping paid for Lina’s round-trip travel expenses from Manila to Miami.
Because of a food poisoning incident which happened during her last cruise assignment,
Lina was not re-hired. Lina claims she has been illegally terminated and seeks separation
pay. If you were the Labor Arbiter handling the case, how would you decide? (4%)
ANSWER: I will dismiss the case. Lina as a seafarer is a contractual employee for a fixed
term, governed by the contract she signed. She cannot be considered a regular employee
despite the fact that she had been continually rehired and his contract renewed for fifteen
(15) years. Her case falls under the exception of Article 280 whose employment has been
fixed for a specific project or undertaking. (Millares, et al. vs. NLRC, 385 SCRA 306
[2002].)
39
I. COMPENSABILITY OF DEATH/DISABILITY/DISEASE
(See Chart on POEA PROCEDURE)
1. IMPORTANT PERLAS-BERNABE CASE; TWO REQUIREMENTS FOR

COMPENSABILITY OF DEATH, DISEASE OR DISABILITY
CANUEL V. MAGSAYSAY MARITIME CORP., G.R. NO. 190161, 13 OCTOBER 2014
A. The seafarer's death should be work-related.

B. The seafarer's death should occur during the term of employment
While the 2000 POEA-SEC does not expressly define what a "work-related
death" means, it is palpable from Part A (4) as above-cited that the said term refers to
the seafarer's death resulting from a work-related injury or illness. This denotation
complements the definitions accorded to the terms "work-related injury" and "work-related
illness" under the 2000 POEA-SEC as follows:
Definition of Terms:
For purposes of this contract, the following terms are defined as
follows:
xxx xxx xxx
11. Work-Related Injury — injury(ies) resulting in disability or death
arising out of and in the course of employment.
12. Work-Related Illness — any sickness resulting to disability
or death as a result of an occupational disease listed under Section
32-A of this contract with the conditions set therein satisfied.
(Emphases supplied)
.
With respect to the second requirement for death compensability, the Court takes this
opportunity to clarify that while the general rule is that the seafarer's death should occur
during the term of his employment, the seafarer's death occurring after the termination of
his employment due to his medical repatriation on account of a work-related injury or
illness constitutes an exception thereto. This is based on a liberal construction of the 2000
POEA-SEC as impelled by the plight of the bereaved heirs who stand to be deprived of a
just and reasonable compensation for the seafarer's death, notwithstanding its evident
work-connection
2. IMPORTANT J. PERLAS-BERNABE CASES ON COMPENSABILITY: |Romana v.

Magsaysay Maritime Corp., G.R. No. 192442, 09 August 2017.
The legal presumption of work-relatedness of a non-listed illness should be

overturned only when the employer's refutation is found to be supported by
substantial evidence, which, as traditionally defined, is "such relevant evidence as a
reasonable mind might accept as sufficient to support a conclusion."
Nonetheless, the presumption provided under Section 20 (B) (4) is only limited to the
"work-relatedness" of an illness. It does not cover and extend to compensability. In
this sense, there exists a fine line between the work-relatedness of an illness and
the matter of compensability. The former concept merely relates to the assumption
that the seafarer's illness, albeit not listed as an occupational disease, may have been
contracted during and in connection with one's work, whereas compensability pertains
to the entitlement to receive compensation and benefits upon a showing that his work
conditions caused or at least increased the risk of contracting the disease. This can be
gathered from Section 32-A of the 2000 POEA-SEC which already qualifies the listed
disease as an "occupational disease" (in other words, a "work-related disease"), but
nevertheless, mentions certain conditions for said disease to be compensable:
SECTION 32-A OCCUPATIONAL DISEASES
For an occupational disease and the resulting disability or death to be

compensable, all of the following conditions must be satisfied:
1. The seafarer's work must involve the risks described herein;
40
2. The disease was contracted as a result of the seafarer's exposure to

the described risks;
3. The disease was contracted within a period of exposure and under
such other factors necessary to contract it;
4. There was no notorious negligence on the part of the seafarer.
(Emphasis and underscoring supplied)
As differentiated from the matter of work-relatedness, no legal presumption of

compensability is accorded in favor of the seafarer. As such, he bears the burden
of proving that these conditions are met.
3. 2015-2018 CASES:
➢ Magsaysay Mitsui OSK Marine, Inc., et at. vs. Oliver G. Buenaventura, G.R. No.
195878, 10 January 2018. -- The duty to secure the opinion of a third doctor is upon the
seafarer. (2) Failure to refer conflicting opinions to a third doctor will render the
assessment of the company-designated physician to prevail. (3) Rules to govern the 120-
day vis-à-vis 240-day period for the company-designated physician to issue a final medical
assessment on the seafarer’s disability grading.
➢ Teekay Shipping Philippines, Inc., et al. vs. Roberto M. Ramoga, Jr., G.R. No.
209582, 19 January 2018.-- It would be premature for a seafarer to file a case for total
disability benefits before the expiration of the prescribed period for the company-
designated physician to issue a final medical assessment of his disability grading; hence,
the case will be dismissed.
Guidelines that govern the seafarer’s claims for permanent total disability benefits
(re 120-day period vis-à-vis 240-day period).
The mere lapse of 120 days from the seafarer's repatriation without the company-
designated physician's declaration of the fitness to work of the seafarer does not entitle
the latter to his permanent total disability benefits (Tagalog v. Crossworld Marine Services,
Inc., et al., 761 Phil. 270, 279 [2015]). As laid down by this Court in Elburg
Shipmanagement Phils. Inc., et al. (765 Phil. 341 [2015]), and in Jebsens Maritime, Inc.,
Sea Chefs Ltd., and Enrique M Aboitiz v. Florvin G. Rapiz (G.R. No. 218871, January 11,
2017), the following guidelines shall govern the seafarer's claims for permanent total
disability benefits:
a. The company-designated physician must issue a final medical assessment on the

seafarer's disability grading within a period of 120 days from the time the seafarer
reported to him;
b. If the company-designated physician fails to give his assessment within the period of
120 days, without any justifiable reason, then the seafarer's disability becomes
permanent and total;
c. If the company-designated physician fails to give his assessment within the period of
120 days with a sufficient justification (e.g. seafarer required further medical treatment
or seafarer was uncooperative), then the period of diagnosis and treatment shall be
extended to 240 days. The employer has the burden to prove that the company-
designated physician has sufficient justification to extend the period; and
d. If the company-designated physician still fails to give his assessment within the
extended period of 240 days, then the seafarer's disability becomes permanent and
total, regardless of any justification.
➢ Generato M. Hernandez vs. Magsaysay Maritime Corporation, et al., G.R. No.

226103, 24 January 2018. -- In case of conflicting medical findings, the referral to a third
41
doctor is mandatory. The duty to secure the opinion of a third doctor belongs to the
employee asking for disability benefits. He must actively or expressly request for it.
➢ Alfredo Mallari Magat vs. Interorient Maritime Enterprises, Inc., et al., G.R. No.
232892, 04 April 2018. -- Although the seafarer is repatriated for completion of his
contract, if it can be shown by substantial evidence that he acquired his illness
during the term of his contract or that his work conditions caused or at least
increased the risk of contracting the disease, then his illness is compensable as it
is work-connected.
➢ Orient Hope Agencies, Inc., et al. vs. Michael E. Jara, G.R. No. 204307, 06 June 2018.
-- Absent a final assessment from the company-designated physician within the
120/140-days periods, the disability is considered total and permanent.
4. OFW Re: work-related illness as listed under Sec. 32-A, POEA-SEC; otherwise, proof of
reasonable causal connection between work and illness.
4.1 For a seaman’s illness to be compensable; mandatory 3-day rule on post-

employment medical examination. Interorient Maritime Enterprises, Inc., vs.
Victor M. Creer III, G.R. No. 181921, 17 Sept 2014.
For an illness to be compensable, Section 20(B)(6) of the 2000 Amended Standard

Terms and Conditions Governing the Employment of Filipino Seafarers on Board
Ocean-Going Vessels (2000 Amended Standard Terms and Conditions), deemed
incorporated in the POEA Contract, requires the concurrence of two elements: first, that
the illness must be work-related; and second, that the work- related illness must have
existed during the term of the seafarer’s employment contract (citing: Jebsens Maritime,
Inc. v. Undag, G.R. No. 191491, December 14, 2011, 662 SCRA 670, 677); See also Pedro
Libang, Jr. vs. Indochina Shipmanagement, Inc., et al, G.R. No. 189863, Sept. 17, 2014.)
4.2 Teekay Shipping Philippines, Inc., v. Exequiel O. Jarin, G.R. No. 195598, 25 June
2014. – Under the 2000 POEA- Standard Employment Contract (SEC), a work-related
illness is “any sickness resulting to disability or death as a result of an occupational
disease listed under Section 32-A with the conditions set therein satisfied.”
The Court has held, however, that the enumeration in Section 32-A does not preclude
other illnesses/diseases not so listed from being compensable. The POEA-SEC cannot
be presumed to contain all the possible injuries that render a seafarer unfit for further
sea duties (Maersk Filipinas Crewing Inc./Maersk Services Ltd., and/or Mr. Jerome Delos Angeles v.
Mesina, G.R. No. 200837, [June 5, 2013, 697 SCRA 601]). This is in view of Section 20(B)(4) of
the POEA-SEC which states that “(t)hose illnesses not listed in Section 32 of this
Contract are disputably presumed as work-related.”
Concomitant with such presumption is the burden placed upon the claimant to present
substantial evidence that his working conditions caused or at least increased the risk of
contracting the disease. It is not sufficient to establish that the seafarer’s illness or
injury has rendered him permanently or partially disabled; it must also be shown
that there is a causal connection between the seafarer’s illness or injury and the
work for which he had been contracted.
It is well to note that in resolving disputes on disability benefits, the fundamental

consideration has been that the POEA-SEC was designed primarily for the protection
and benefit of Filipino seamen in the pursuit of their employment onboard ocean-going
vessels. As such, its provisions must be construed and applied fairly, reasonably and
liberally in their favor because only then can its beneficent provisions be fully carried into
effect.
42
ADA’S NOTES:
➢ General rule: If sickness resulting in death or disability is among those listed in POEA-
SEC Sec 32-A, then this is compensable.
Exception: If not listed in POEA SEC Sec 32-A, then sickness is disputably presumed to
be work-related BUT NOT NECESSARILY COMPENSABLE. Burden is upon OFW (or
heirs) to prove reasonable causal connection between work and sickness, before it may
be considered compensable.
POEA SEC, as well as the laws of the Republic of the Philippines, international
conventions, treaties and covenants where the Philippines is a signatory, are deemed
automatically incorporated into any employment contract entered into by a Filipino OFW.
5. No compensation and benefits are payable for injury, incapacity, disability or death
from OFW’s own willful act.
5.1 TSM Shipping (Phils.), Inc. v. De Chavez, G.R. No. 198225, 27 September 2017.-
||
Given the evidence on record, we hold that Ryan's death was due to his own deliberate
act and deed. Indeed the Medical Certificate of Death prepared by Dr. Sung Yeoul
Hung of the Ulsan City Hospital, who, it is presumed, must have examined Ryan's
cadaver, and the INTECO's Report which contained information involving the self-same
death, must be deemed as substantial evidence of that fact. We are satisfied that the
material facts set forth in the Decisions of both the LA and the NLRC constitute
substantial evidence that Ryan took his own life, that he died by his own hands. "That
[the seafarer's] death was a result of his willful act is a matter of defense. Thus,
petitioners [as employers] have the burden to prove this circumstance by substantial
evidence" which is the quantum of proof in labor cases. The Supreme Court has thus
consistently held that the seafarer's heirs were not entitled to any benefits since the
employers were able to substantially prove that the seafarer who was found hanging
on the vessel's upper deck with a rope tied to his neck had committed suicide.
5.2 Wallen Maritime Services, Inc., et. al. vs. Pedrajas, G.R. No. 192993, 11 August 2014
-- The death of a seaman during the term of his employment makes the employer liable
to the former’s heirs for death compensation benefits. This rule, however, is not absolute.
The employer may be exempt from liability if it can successfully prove that the seaman’s
death was caused by an injury directly attributable to his deliberate or willful act. The
burden of proof rests on his employer. Thus, Section 20 (D) of the POEA-SEC provides:
“No compensation and benefits shall be payable in respect of any injury,
incapacity, disability or death of seafarer resulting from his willful or criminal
act or intentional breach of his duties x x x.”
6. How to establish that disability is compensable; effect of non-disclosure of pre-existing

ailment. Martin K. Ayungo vs. Beamko Shipmanagement Corp., et al. G.R. No. 203161,
26 Feb 2014. -- For disability to be compensable, the seafarer must establish that there exists
“a reasonable linkage between the disease suffered by the employee and his work to lead a
rational mind to conclude that his work may have contributed to the establishment or, at the
very least, aggravation of any pre-existing condition he might have had.” (Magsaysay Maritime
Services vs. Laurel, G.R. No. 195518, March 20, 2013, 694 SCRA 225.)
In other words, not only must the seafarer establish that his injury or illness rendered him
permanently or partially disabled, it is equally pertinent that he shows a causal connection
between such injury or illness and the work for which he had been contracted. (Magsaysay
Maritime Corp. vs. NLRC, G.R. No. 186180, March 22, 2010, 616 SCRA 362.)
Non-disclosure of a pre-existing ailment, constitute, fraudulent misrepresentation which,

pursuant to Section 20 (E) of the 2000 POEA-SEC, would disqualify a seafarer from claiming
any disability benefits from his employer.
43
7. Medical expenses, sickness allowance and disability benefits are separate and distinct
from one another. The late Alberto B. Javier, etc., vs. Philippine Transmarine Carriers,
Inc., et al., G.R. no. 204101, 02 July 2014. -- The seafarer is entitled to medical treatment at
cost to the employer apart from disability benefits and sickness allowance. The medical
treatment is provided him until such time he is declared fit or the degree of his disability has
been determined by the company-designated physician.
Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness
allowance equivalent to his basic wage until he is declared fit to work or the degree of his
disability has been assessed by the company-designated physician.
Medical expenses, sickness allowance and disability benefits are separate and distinct from
one another. As a matter of law, the benefit of medical treatment at the employer’s expense
is separate and distinct from the disability benefits and sickness allowance to which the
seafarer is additionally entitled.
8. GUIDELINES IN DISABILITY CLAIMS:
“The liabilities of the employer when the seafarer suffers work-related injury or illness during
the term of his contract are as follows:
1. The employer shall continue to pay the seafarer his wages during the time he is on board
the vessel;
2. If the injury or illness requires medical and/or dental treatment in a foreign port, the
employer shall be liable for the full cost of such medical, serious dental, surgical and
hospital treatment as well as board and lodging until the seafarer is declared fit to work
or to repatriated.
3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness
allowance equivalent to his basic wage until he is declared fit to work or the degree of
permanent disability has been assessed by the company-designated physician but in no
case shall this period exceed one hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a post-employment medical
examination by a company-designated physician within three working days upon his
return except when he is physically incapacitated to do so, in which case, a written
notice to the agency within the same period is deemed as compliance. Failure of the
seafarer to comply with the mandatory reporting requirement shall result in his
forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may
be agreed jointly between the Employer and the seafarer. The third doctor’s decision
shall be final and binding on both parties.
4. Those illnesses not listed in Section 32 of this Contract are disputably presumed as work
related.
5. Upon sign-off of the seafarer from the vessel for medical treatment, the employer shall
bear the full cost of repatriation in the event the seafarer is declared (1) fit for repatriation;
or (2) fit to work but the employer is unable to find employment for the seafarer on board
his former vessel or another vessel of the employer despite earnest efforts.
6. In case of permanent total or partial disability of the seafarer caused by either injury or
illness the seafarer shall be compensated in accordance with the schedule of benefits
arising from an illness or disease shall be governed by the rates and the rules of
compensation applicable at the time the illness or disease was contracted.
44
Victor was hired by a local manning agency as a seafarer cook on board a luxury vessel for an
eight-month cruise. While on board, Victor complained of chronic coughing, intermittent fever, and
joint pains. He was advised by the ship's doctor to take complete bed rest but was not given any
other medication. His condition persisted but the degree varied from day to day. At the end of the
cruise, Victor went home to Iloilo and there had himself examined. The examination revealed that
he had tuberculosis.
(a) Victor sued for medical reimbursement, damages and attorney's fees, claiming that
tuberculosis was a compensable illness. Do you agree with Victor? Why or why not? (2%)
(b) Due to his prolonged illness, Victor was unable to work for more than 120 days. Will this entitle
him to claim total permanent disability benefits? (2%)
Answer:
(a) For a seaman’s claim for disability to prosper, it is mandatory that within three (3) days from
his repatriation, he is examined by a company-designated physician. Noncompliance with this
mandatory requirement results in the forfeiture of the right to claim for compensation and disability
benefits. Although tuberculosis is an occupational disease and, therefore, compensable, but
because Victor failed to comply with the above mandatory requirement, his complaint for disability
benefits must perforce be dismissed.
(b) By virtue of the above consideration, Victor has forfeited his entitlements. However, it must be
noted that the passage of 120 days will not automatically mean that the seafarer is immediately
entitled to total permanent disability benefits. It would depend upon the date of the filing of the
complaint. If the maritime complaint was filed prior to 6 October 2008, the 120-day rule applies;
if, on the other, the complaint was filed from 06 October 2008 onwards, the 240-day rule applies.
(Crystal Shipping vs. Natividad, 510 Phil. 332).
J. PROCEDURES AND REMEDIES

(See Charts “F” and “G” on jurisdiction and procedure)
1. IMPORTANT PERLAS-BERNABE CASES:
➢ Jolo's Kiddie Carts v. Caballa, G.R. No. 230682, 29 November 2017.

It must be stressed that to justify the grant of the extraordinary remedy of certiorari,
petitioners must satisfactorily show that the court or quasi-judicial authority gravely
abused the discretion conferred upon it. Grave abuse of discretion connotes judgment
exercised in a capricious and whimsical manner that is tantamount to lack of
jurisdiction. To be considered "grave," discretion must be exercised in a despotic
manner by reason of passion or personal hostility, and must be so patent and gross as
to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined by or to act at all in contemplation of law.
In labor cases, grave abuse of discretion may be ascribed to the NLRC when its
findings and conclusions are not supported by substantial evidence, which refers to
that amount of relevant evidence that a reasonable mind might accept as adequate to
justify a conclusion. Thus, if the NLRC's ruling has basis in the evidence and the
applicable law and jurisprudence, then no grave abuse of discretion exists and the CA
should so declare and, accordingly, dismiss the petition.
Guided by the foregoing considerations and as will be explained hereunder, the Court
finds that the NLRC did not gravely abuse its discretion in ruling that: (a) petitioners are
barred from raising improper venue and that the verification requirement in
45
respondents' position paper was substantially complied with; and (b) respondents were
neither dismissed by petitioners nor considered to have abandoned their jobs. However
and as already discussed, the NLRC committed grave abuse of discretion amounting
to lack or excess of jurisdiction when it awarded respondents increased monetary
benefits without any factual and/or legal bases.
➢ Genpact Services, Inc. v. Santos-Falceso, G.R. No. 227695, [July 31, 2017], 814 PHIL
1091-1101. -- Given the special and extraordinary nature of a Rule 65 petition, the general
rule is that a motion for reconsideration must first be filed with the lower court prior to
resorting to the extraordinary remedy of certiorari, since a motion for reconsideration may
still be considered as a plain, speedy, and adequate remedy in the ordinary course of law.
The rationale for the pre-requisite is to grant an opportunity for the lower court or agency
to correct any actual or perceived error attributed to it by the re-examination of the legal
and factual circumstances of the case.
This notwithstanding, the foregoing rule admits of well-defined exceptions, such as: (a)
where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where
the questions raised in the certiorari proceedings have been duly raised and passed upon
by the lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the Government or of the petitioner or the subject
matter of the action is perishable; (d) where, under the circumstances, a
motion for reconsideration would be useless; (e) where petitioner was deprived of
due process and there is extreme urgency for relief; (f) where, in a criminal case, relief
from an order of arrest is urgent and the granting of such relief by the trial court is
improbable; (g) where the proceedings in the lower court are a nullity for lack of due
process; (h) where the proceedings were ex parte or in which the petitioner had no
opportunity to object; and (i) where the issue raised is one purely of law or where public
interest is involved.
A judicious review of the records reveals that the exceptions in items (d) and (e) are
attendant in this case. The dispositive portion of the NLRC's June 30, 2014 Resolution —
which partially granted respondents' motion for reconsideration, and accordingly,
increased their entitlement to separation pay to one (1) month salary per year of service
— reads in its entirety:
WHEREFORE, premises considered, the motion for reconsideration is
partly granted. The assailed Decision is modified in that GENPACT Services
LLC is ordered to pay complainants separation pay of one month salary per
year of service. The amounts already received by complainants shall be
deducted from the amounts due.
No further motion of similar import shall be entertained.
SO ORDERED. (Emphasis and underscoring supplied)
Otherwise worded, the highlighted portion explicitly warns the litigating parties that
the NLRC shall no longer entertain any further motions for reconsideration. Irrefragably,
this circumstance gave petitioners the impression that moving for reconsideration before
the NLRC would only be an exercise in futility in light of the tribunal's aforesaid warning.
Moreover, Section 15, Rule VII of the 2011 NLRC Rules of Procedure, as amended,
provides, among others, that the remedy of filing a motion for reconsideration may be
availed of once by each party. In this case, only respondents had filed a
motion for reconsideration before the NLRC. Applying the foregoing provision,
petitioners also had an opportunity to file such motion in this case, should they wish to
do so. However, the tenor of such warning effectively deprived petitioners of such
opportunity, thus, constituting a violation of their right to due process.
All told, petitioners were completely justified in pursuing a direct recourse to the CA
through a petition for certiorari under Rule 65 of the Rules of Court. To rule otherwise
46
would be clearly antithetical to the tenets of fair play, not to mention the undue prejudice
to petitioners' rights. 38 Thus, in light of the fact that the CA dismissed outright
the petition for certiorari before it solely on procedural grounds, a remand of the
case for a resolution on the merits is warranted. (Genpact Services, Inc. v. Santos-
Falceso, G.R. No. 227695, [July 31, 2017], 814 PHIL 1091-1101)
2. 2015-2018 CASES:
Consolidated Distillers of the Far East, Inc. vs. Rogel N. Zaragoza, G.R. No.
229302, 20 June 2018. -- In rendering justice, courts should be guided by the norm
that technicalities take a backseat against substantive rights. In short, substantive
law outweighs procedural technicalities.
Norma D. Cacho and North Star International Travel, Inc., vs. Virginia D. Balagtas, G.R.
No. 202974, 07 February 2018. -- A question of fact that is outside the scope of a
petition for review under rule 65. The CA is only tasked to determine whether or not
the NLRC committed grave abuse of discretion in its appreciation of factual issues
presented before it by any parties. The CA is not given unbridled discretion to modify
factual findings of the NLRC and LA, especially when such matters have not been
assigned as errors nor raised in the pleadings.
Wilfredo P. Asayas vs. Sea Power Shipping Enterprises, Inc., et al., G.R. No. 201792,
24 January 2018. FINALITY OF DECISION-- With the service by registered mail being
complete, the respondents only had 10 calendar days from the return of the mail
within which to appeal in accordance with the Labor Code. When they did not so
appeal, the LA's decision became final and executory.
With the LA's decision attaining finality; it was no longer legally feasible or permissible
to modify the ruling through the expediency of a petition claiming that the termination
of the petitioner's employment had been legal. Verily, the decision could no longer
be reviewed, or in any way modified directly or indirectly by a higher court, not
even by the Supreme Court (C-E Construction Corporation v. National Labor
Relations Commission, G.R. No. 180188, 582 SCRA 449, 456).
The underlying reason for the rule is two-fold: (1) to avoid delay in the administration
of justice and thus make orderly the discharge of judicial business; and (2) to put
judicial controversies to an end, at the risk of occasional errors, inasmuch as
controversies cannot be allowed to drag on indefinitely and the rights and obligations
of every litigant must not hang in suspense for an indefinite period of time. The courts
must guard against any scheme calculated to bring about that result, and must frown
upon any attempt to prolong controversies.
Purisimo M. Cabaobas, et al. vs. Pepsi-Cola Products Phil., Inc., G.R. No. 176908, 25
March 2015. -- If the factual circumstances between two cases are substantially the same,
the principle of stare decisis shall apply.
Smart Communications, Inc., et al. vs. Jose Leni Z. Solidum, G.R. No. 204646, 15 April
2015. -- In illegal dismissal cases, if the LA ordered reinstatement, and the employer failed
to reinstate the employee either actually or in the payroll, and the NLRC on appeal reversed
the decision of the LA, the employee is entitled to the accrued salaries and other benefits
from the date of the LA’s decision up to the date the NLRC decision becomes final and
executory.
Teekay Shipping vs. Concha, GR 185463, 22 Feb 2012 -- FOUR YEAR PRESCRIPTIVE
PERIOD FOR TERMINATION CASES. -- “One’s employment, profession, trade or calling is
a “property right,” within protection of a constitutional guaranty of due process of law. Clearly
47
then, when one is arbitrarily and unjustly deprived of his job or means of livelihood, the action
instituted to contest the legality of one’s dismissal from employment constitutes, in essence,
an action predicated “upon an injury to the rights of the plaintiff,” as contemplated under Art.
1146 of the New Civil Code, which must be brought within FOUR (4) YEARS” . Hence this is
the reason why termination cases have a prescriptive period of four (4) years, viz: injury upon
rights of plaintiff under art 1146 of Civil Code
3. IMPORTANT CASE: PEOPLE'S BROADCASTING SERVICE (BOMBO RADYO PHILS.,

INC.), vs. THE SECRETARY OF THE DEPARTMENT OF LABOR AND EMPLOYMENT
(G.R. No. 179652, March 6, 2012); Jurisdiction of DOLE on its visitorial power
The determination of the existence of an employer-employee relationship by the DOLE must

be respected. The expanded visitorial and enforcement power of the DOLE granted by
RA 7730 would be rendered nugatory if the alleged employer could, by the simple
expedient of disputing the employer-employee relationship, force the referral of the
matter to the NLRC. The Court issued the declaration that at least a prima facie showing of
the absence of an employer-employee relationship be made to oust the DOLE of jurisdiction.
But it is precisely the DOLE that will be faced with that evidence, and it is the DOLE that will
weigh it, to see if the same does successfully refute the existence of an employer-employee
relationship.
If the DOLE makes a finding that there is an existing employer-employee relationship, it takes
cognizance of the matter, to the exclusion of the NLRC. The DOLE would have no jurisdiction
only if the employer-employee relationship has already been terminated, or it appears, upon
review, that no employer-employee relationship existed in the first place.
TO RECAPITULATE:
a. If a complaint is brought before the DOLE to give effect to the labor standards provisions
of the Labor Code or other labor legislation, and there is a finding by the DOLE that there
is an existing employer-employee relationship, the DOLE exercises jurisdiction to the
exclusion of the NLRC.
b. If the DOLE finds that there is no employer-employee relationship, the jurisdiction is

properly with the NLRC.
c. If a complaint is filed with the DOLE, and it is accompanied by a claim for reinstatement,
the jurisdiction is properly with the Labor Arbiter, under Art. 217(3) of the Labor Code,
which provides that the Labor Arbiter has original and exclusive jurisdiction over those
cases involving wages, rates of pay, hours of work, and other terms and conditions of
employment, if accompanied by a claim for reinstatement.
d. If a complaint is filed with the NLRC, and there is still an existing employer-employee
relationship, the jurisdiction is properly with the DOLE. The findings of the DOLE, however,
may still be questioned through a petition for certiorari under Rule 65 of the Rules of Court.
e.
4. REQUISITES TO PERFECT AN APPEAL FROM LABOR ARBITER TO NLRC.
The requisites for perfection of appeal as embodied in Article 223, as amended, are:
(1) payment of appeal fees;
(2) filing of the memorandum of appeal; and
(3) payment of the required cash or surety bond (equivalent to the monetary award less
damages and attorney’s fees)
(4) Requisites 1-3 must be satisfied within ten (10) days from receipt of the decision or order
appealed from.
As a rule, an appeal is perfected only upon the posting of a cash or surety bond. The said
posting within the period provided by law is not merely mandatory but jurisdictional.
48
CASES ON REQUIREMENTS FOR APPEAL;
4.1 IMPORTANT PERLAS-BERNABE CASE: Quantum Foods, Inc. v. Esloyo, G.R. No.
|||
213696, 09 December 2015. -- In labor cases, the law governing appeals from the LA's
ruling to the NLRC is Article 229 of the Labor Code which provides:
ART. 229. Appeal. — Decisions, awards, or orders of the Labor
Arbiter are final and executory unless appealed to the Commission by any
or both parties within ten (10) calendar days from receipt of such decisions,
awards, or orders. Such appeal may be entertained only on any of the
following grounds:
(a) If there is a prima facie evidence of abuse of discretion on the
part of the Labor Arbiter;
(b) If the decision, order or award was secured through fraud or
coercion, including graft and corruption;
(c) If made purely on questions of law; and
(d) If serious errors in the findings of facts are raised which would
cause grave or irreparable damage or injury to the appellant.
In case of a judgment involving a monetary award, an appeal by
the employer may be perfected only upon the posting of a cash or
surety bond issued by a reputable bonding company duly accredited
by the Commission in the amount equivalent to the monetary award in
the judgment appealed from.
xxx xxx xxx (Emphasis and underscoring supplied)
In this relation, Section 4, Rule VI of the 2005 Revised Rules of Procedure of the NLRC,
(the Rules) enumerates the requisites for the perfection of appeal, viz.:
Section 4. Requisites for Perfection of Appeal. — a) The appeal shall
be: 1) filed within the reglementary period provided in Section 1 of this Rule;
2) verified by the appellant himself in accordance with Section 4, Rule 7
of the Rules of Court, as amended; 3) in the form of a memorandum of
appeal which shall state the grounds relied upon and the arguments in
support thereof, the relief prayed for, and with a statement of the date the
appellant received the appealed decision, resolution or order; 4) in three (3)
legibly typewritten or printed copies; and 5) accompanied by i) proof of
payment of the required appeal fee; ii) posting of a cash or
surety bond as provided in Section 6 of this Rule; iii) a certificate of
non-forum shopping; and iv) proof of service upon the other
parties. ITAaHc
b) A mere notice of appeal without complying with the other
requisites aforestated shall not stop the running of the period for
perfecting an appeal. xxx xxx xxx (EmphasIs supplied)
4.2 On Motion to Reduce Bond. -- Andi D. Balite, et al. vs. SS Ventures International,
Inc., et al., G.R. No. 195109, 04 Feb 2015; see also: Philippine Touristers, Inc., et al
vs. Mas Transit Workers Union-Anglo KMU, etc., G.R. No. 201237, 03 Sept 2014.
The NLRC New Rules of Procedure only allow the filing of a motion to reduce bond on
two conditions: (1) that there is meritorious ground; and (2) a bond in a reasonable
amount is posted. Compliance with the two conditions stops the running of the period to
perfect an appeal provided that they are complied within the 10-day reglementary period.
49
4.3 IMPORTANT CASE: Government’s exemption from the posting of appeal bond. --
Banahaw Broadcasting Corporation vs. Cayetano Pacana III, et al, G.R. No.
171673, 30 May 2011. -- The Supreme Court, held that as a general rule, the government
and all the attached agencies with no legal personality distinct from the former are exempt
from posting appeal bonds.
An appeal is only a statutory privilege and it may only be exercised in the manner
provided by law. Nevertheless, in certain cases, we had occasion to declare that while
the rule treats the filing of a cash or surety bond in the amount equivalent to the monetary
award in the judgment appealed from, as a jurisdictional requirement to perfect an appeal,
the bond requirement on appeals involving monetary awards is sometimes given a liberal
interpretation in line with the desired objective of resolving controversies on the merits.
The rationale for the appeal bond is to protect the presumptive judgment creditor against
the insolvency of the presumptive judgment debtor. When the State litigates, it is not
required to put up an appeal bond because it is presumed to be always solvent.
This exemption, however, does not, as a general rule, apply to government-owned and
controlled corporations (GOCCs) for the reason that the latter has a personality distinct
from its shareholders. In this case, BBC, though owned by the government, is a
corporation with a personality distinct from the Republic or any of its agencies or
instrumentalities, and therefore do not partake in the latter’s exemption from the posting
of appeal bonds.
4.3 Substantial compliance with cash bond requirement, where bond posted in
a previously decided case may be applied to the present case. Lepanto
Consolidated Mining Corporation vs. Belio Icao, G.R. No. 196047, 15 January 2014.
-- Lepanto substantially complied with the appeal bond requirement under the Labor
Code and the NLRC Rules. It filed a Consolidated Motion to release the cash bond it
posted in another case, which had been decided with finality in its favor with a view to
applying the same cash bond to the present case.
The decision is based on the following reasons:

a. The appeal was filed within the 10-day reglementary period;
b. Lepanto has an unencumbered amount of money in the form of cash in the custody
of the NLRC;
c. The amount of the cash bond posted in the other case is more than enough to cover
the appeal bond in the present case; and
d. This ruling remains faithful to the spirit behind the appeal bond requirement which is
to ensure the workers will receive the money awarded in their favor when the
employer’s appeal eventually fails.
5. VERIFICATION AND CERTIFICATION;
5.1 TIMELINESS: importance of material dates in petition for certiorari; Blue Eagle
Management, Inc. v. Naval, G.R. No. 192488, 19 April 2016, 785 PHIL 133-162) -- As
the rule indicates, the 60-day period starts to run from the date petitioner receives the
assailed judgment, final order or resolution, or the denial of the motion for reconsideration
or new trial timely filed, whether such motion is required or not. To establish the timeliness
of the petition for certiorari, the date of receipt of the assailed judgment, final order or
resolution or the denial of the motion for reconsideration or new trial must be stated in
the petition; otherwise, the petition for certiorari must be dismissed. The importance of
the dates cannot be understated, for such dates determine the timeliness of the
filing of the petition for certiorari. As the Court has emphasized in Tambong v. R.
Jorge Development Corporation:
There are three essential dates that must be stated in a petition
for certiorari brought under Rule 65. First, the date when notice of the
judgment or final order or resolution was received; second, when a motion
for new trial or reconsideration was filed; and third, when notice of the denial
50
thereof was received. Failure of petitioner to comply with this

requirement shall be sufficient ground for the dismissal of the petition.
Substantial compliance will not suffice in a matter involving strict
observance with the Rules. (Emphasis supplied)
The Court has further said in Santos v. Court of Appeals: The
requirement of setting forth the three (3) dates in a petition for certiorari under
Rule 65 is for the purpose of determining its timeliness. Such a petition is
required to be filed not later than sixty (60) days from notice of the judgment,
order or Resolution sought to be assailed. Therefore, that the petition
for certiorari was filed forty-one (41) days from receipt of the denial of the
motion for reconsideration is hardly relevant. The Court of Appeals was not
in any position to determine when this period commenced to run and whether
the motion for reconsideration itself was filed on time since the material dates
were not stated. It should not be assumed that in no event would the motion
be filed later than fifteen (15) days. Technical rules of procedure are not
designed to frustrate the ends of justice. These are provided to effect the
proper and orderly disposition of cases and thus effectively prevent the
clogging of court dockets. Utter disregard of the Rules cannot justly be
rationalized by harking on the policy of liberal construction. (Citations
omitted.)
5.2 Effect of failure to state material dates: DISMISSAL OF PETITION (Wenceslao v.

Makati Development Corp., G.R. No. 230696, 30 August 2017.
Even with copies of portions of the case records attached, the petitioners still failed to
address the lacking statement of the material dates despite clear notice of such violation
together with the other grounds for the dismissal of the petition set forth in the first assailed
CA resolution. Indeed, the failure to state the material dates in a petition for certiorari is
sufficient ground to dismiss it under Section 3, Rule 46 in relation to Rule 65 of the Rules
of Court.|||
5.3 WHO CAN SIGN FOR THE COMPANY WITHOUT NEED OF BOARD RESOLUTION. South
Cotabato Communications Corporation and Gauvain J. Benzonan vs. Hon. Patricia A. Sto.
Tomas, et al, G.R. No. 173326, 15 Dec 2010. –
The following can sign the verification and certification against forum
shopping without need of a board resolution: (1) the Chairperson of the
Board of Directors, (2) the President of a corporation, (3) the General
Manager or Acting General Manager, (4) Personnel Officer, and (5) an
Employment Specialist in a labor case.
While the above cases do not provide a complete listing of authorized signatories, the
determination of the sufficiency of the authority was done on a case to case basis. In the
foregoing cases the authority of said corporate representatives to sign the verification or
certificate is justified in their being in a position to verify the truthfulness and correctness
of the allegations in the petition. However, the better procedure is still to append a board
resolution to the complaint or petition to obviate questions regarding the authority of the
signatory of the verification and certification.
5.4 Philtranco Service Enterprises, Inc., et al. vs. Philtranco Workers Union – AGLO,
G.R. No. 180962, 26 February 2014. -- Even if a government office prohibits the filing of
a motion for reconsideration, such motion must still be filed for purposes of the filing of a
petition for certiorari.
5.5. VERIFICATION VS. CERTIFICATION

The verification of a pleading is a formal, not a jurisdictional, requirement
intended to secure the assurance that the matters alleged in a pleading are true and
51
correct. Thus, the court or tribunal may simply order the correction of unverified
pleadings or act on them and waive strict compliance with the rules, as the NLRC did.
On the other hand, the certification requirement is rooted in the principle that a party-
litigant shall not be allowed to pursue simultaneous remedies in different fora, as this
practice is detrimental to an orderly judicial procedure. However, under justifiable
circumstances, the Court has relaxed the rule requiring the submission of such
certification considering that although it is obligatory, it is not jurisdictional (Quantum
|||
Foods, Inc. v. Esloyo, G.R. No. 213696, [December 9, 2015]) In China Banking Corp. v.
Mondragon Int'l. Phils., Inc., 511 Phil. 760 (2005)
6. RULES ON THE COMPUTATION OF MONETARY AWARDS

United Coconut Chemicals, Inc. v. Valmores, G.R. No. 201018, 12 July 2018, 813 PHIL 685-
704. CJ Bersamin.
➢ The settled rule is that full backwages shall be pegged at the wage rate at the time of the
employee's dismissal, unqualified by any deductions and increases. The base figure to
be used in reckoning full backwages is the salary rate of the employee at the time of his
dismissal.
➢ The base figure for the computation of backwages should include not only the basic salary
but also the regular allowances being received, such as the emergency living allowances
and the 13th month pay mandated by the law. The purpose for this is to compensate the
worker for what he has lost because of his dismissal, and to set the price or penalty on
the employer for illegally dismissing his employee|||
➢ However, the salary base figure should NOT include the CBA increases or benefits
granted during the period of his dismissal because time stood still for him at the precise
moment of his termination, and move forward only upon his reinstatement.
➢ Hence, the respondent should only receive as backwages that salary which includes CBA
benefits allowances being received by him at the time of his illegal dismissal BUT NOT
the CBA benefits granted to his co-employees after his dismissal.
7. IMPORTANT CASE ON QUITCLAIMS: GOODRICH VS. ATIVO, 01 FEB 2010.
GENERAL RULE: Courts look with disfavor on quitclaims and releases made by employees
who have been pressured into signing them by unscrupulous employers seeking to evade
legal responsibilities and frustrate just claims fo employees.
EXCEPTION: However, quitclaims will be considered as valid and binding if the employer is
able to prove the following:
• Employee executes the quitclaim voluntarily

• There is no fraud or deceit on the part of the employer
• Consideration for the quitclaim is credible and reasonable
• Contract is not contrary to law, public order, public policy, morals or good customs or
prejudicial to a third person with a right recognized by law.
In this case, employer was able to prove all of the above. The consideration is not grossly
inadequate vis-à-vis what they should receive in full. The difference in the anounts expected
from those that were received may be considered as a fair and reasonable bargain on the part
of the both parties.
8. IMPORTANT CASE: MAY THE ISSUE OF ABSENCE OF EMPLOYER-EMPLOYEE

RELATIONSHIP BE RAISED FOR THE FIRST TIME ON APPEAL?
52
ANSWER: NO. The alleged absence of employer-employee relationship cannot be raised

for the first time on appeal. In its Position Paper, petitioner highlighted respondent’s
complicity and involvement in the alleged “fake condemnation” of damaged cigarettes as
found by the DFPDC. This, according to petitioner, was a just cause for terminating an
employee.
With the pleadings submitted by petitioner, together with the corresponding pleadings filed
by respondent, the LA and the NLRC declared the dismissal of respondent illegal. These
decisions were premised on the finding that there was an employer-employee relationship.
Nowhere in said pleadings did petitioner deny the existence of said relationship. Rather, the
line of its defense impliedly admitted said relationship. The issue of illegal dismissal
would have been irrelevant had there been no employer-employee relationship in the
first place.
In this case, petitioner insisted that respondent was dismissed from employment for cause
and after the observance of the proper procedure for termination. Consequently, petitioner
cannot now deny that respondent is its employee. While indeed, jurisdiction cannot be
conferred by acts or omission of the parties, petitioner’s belated denial that it is the employer
of respondent is obviously an afterthought, a devise to defeat the law and evade its
obligations. (Duty Free Phils vs. Tria, G.R. No. 174809, 27 June 2012)
BAR QUESTIONS:
2018 BAR QUESTION:

Due to his employer’s dire financial situation, Nicanor was prevailed upon by his employer to
voluntarily resign. In exchange, he demanded payment of salary differentials, 13th month pay,
and financial assistance, as promised by his employer. Management promised to pay him as
soon as it is able to pay off all retrenched ran-and-filed employees. Five years later, and before
management was able to pay Nicanor the amount promised to him, Nicanor died of a heart attack.
His widow, Norie filed a money claim against the company before the National Labor Relations
Commission (NLRC), including interest on the amount of the unpaid claim. She also claimed
additional damages arguing that the supposed resignation letter was obtained from her spouse
through undue pressure and influence. The employer filed a motion to dismiss on the ground that
(A) the NLRC did not have jurisdiction over money claims, and (8) the action has prescribed.
(a) Does the NLRC have jurisdiction to award money claims including interest on the amount
unpaid? (2.5%)
SUGGESTED ANSWER: The NLRC has jurisdiction over money claims arising from an
employer-employee relationship where the amount claimed is in excess of Php 5,000
including interest, regardless of whether or not there is a claim for reinstatement. (Sec. 10,
RA 8042, as amended by RA 10022_.
(b) Assuming that the NL RC has jurisdiction, has the action prescribed? (2.5%)
SUGGESTED ANSWER: In Accessories Specialists, Inc. v. Alabama, G.R. No. 168985, 23
July 2008, the SC held that the principle of promissory estoppel can apply as a recognized
exception to the three-year prescriptive period under Article 201 (now 306) of the Labor Code.
Nicanor relied on the promise of the employer that he would be paid as soon as the claims
of retrenched employees were paid. If not for this promise, there would have been no eason
why Nicanor would delay the filing of the complaint. Great injustice would be committed if
the employee’s claim were brushed aside on mere technicality, especially when it was the
employer’s action that prevented Nicanor from filing the claims within the required period.
ALTERNATIVE ANSWER: Yes, the action has unfortunately prescribed as there is only a
three-year prescriptive period for monetary claims under the Labor Code as in the case of
retirement benefits
(c) May Nicanor’s spouse successfully claim additional damages as a result of the alleged
undue pressure and influence? (2.5%)
53
SUGGESTED ANSWER: Norrie failed to establish that Nicanor’s consent was vitiated when
he filed his resignation letter. In BMG Record v. Aparecio, G.R. No. 153290, September 5,
2007, the SC ruled that the matter of “financial assistance” was an act of generosity on the
part of management. Under the circumstances, Nicanor had the intention to resign. Once
management had accepted the resignation, Nicanor could not unilaterally withdraw this
voluntary act of termination of employment.
ALTERNATIVE ANSWER: No. In the case Nicanor voluntarily resigned. Burden of proof of
the fact of dismissal, and of the alleged undue pressure and influence, is upon Nicanor’s
wife as claimant. Absent such proof, the claim of damages, must fail (Del Castillo, Malixi v.
Mexicalli Philippines, G.R. No. 205061, June 8, 2016).
2016 BAR QUESTION:

Filmore Corporation was ordered to pay P49 million to its employees by the Labor Arbiter. It
interposed an appeal by filing a Notice of Appeal and paid the corresponding appeal fee.
However, instead of filing the required appeal bond equivalent to the total amount of the
monetary award, Filmore filed a Motion to Reduce the Appeal Bond to P4,000,000.00 but
submitted a surety bond in the amount of P4.9 million. Filmore cited financial difficulties as
justification for its inability to post the appeal bond in full owing to the shutdown of its operations.
It submitted its audited financial statements showing a loss of P40 million in the previous year.
To show its good faith, Filmore also filed its Memorandum of Appeal.
The NLRC dismissed the appeal for non-perfection on the ground that the posting of an appeal
bond equivalent to the monetary award is indispensable for the perfection of the appeal and the
reduction of the appeal bond, absent any showing of meritorious ground to justify the same, is
not warranted. Is the dismissal of the appeal correct? Explain. (5%)
ANSWER:
The Appeal should not be dismissed in the light of the substantial compliance with the requisites
for the reduction of a surety bond, to wit:
a) The filing of a motion to reduce appeal bond shall be entertained by the NLRC subject
to the following conditions: (1) there is meritorious ground; and (2) a bond in a
reasonable amount is posted;
b) For purposes of compliance with condition no. 2, a motion shall be accompanied by the
posting of a provisional cash or surety bond equivalent to ten percent (10%) of the
monetary award subject of the appeal, exclusive of damages and attorney’s fees;
c) Compliance with the foregoing conditions shall suffice to suspend the running of the 10-
day reglementary period to perfect an appeal from the labor arbiter’s decision to the
NLRC;
d) The NLRC retains its authority and duty to resolve the motion to reduce bond and
determine the final amount of bond that shall be posted by the appellant, still in
accordance with the standards of “meritorious grounds” and “reasonable amount”; and
e) In the event that the NLRC denies the motion to reduce bond, or requires a bond that
exceeds the amount of the provisional bond, the appellant shall be given a fresh period
of ten (10) days from notice of the NLRC order within which to perfect the appeal by
posting the required appeal bond. (Andrew James McBurnie vs. EulalioGanzon, EGI
Manager G.R. No. 178034, 178117, 17 October 2013; see alsoQuantum Foods, Inc.
vs. Marcelino Esloyo and Glen Magsila, G.R. No. 213696, 09 December 2015;Turks
Shawarma Company, et al. vs. Feliciano Z. Pajaron, et al. G.R. No. 207156, 16 January
2017).
2014 BAR QUESTION:

Luisito has been working with Lima Land for 20 years. Wanting to work in the public sector,
Luisito applied with and was offered a job at Livecor. Before accepting the offer, he wanted to
consult you whether the payments that he and Lima Land had made to the Social Security
System (SSS) can be transferred or credited to the Government Service Insurance System
(GSIS). What would you advice? (4%)
54
ANSWER: Yes, the portability of benefits under RA 7699 would allow the transfer of the
payments made by Luisito and Lima Land from SSS to GSIS.
K. SUPREME COURT CASES

AFFECTING THE SSS/SSC
1. The Social Security System and the Social Security Commission’s findings of fact
regarding the existence of an employer-employee relationship for purposes of
coverage under social security laws, are given weight and credence by the Supreme
Court. -- GAPAYAO VS. FULO AND SSS, G.R. NO. 193493, 13 JUNE 2013.
“At the outset, it is settled that the Supreme Court is NOT a trier of acts,
and will not weigh evidence all over again. Findings of fact of administrative
agencies and quasi-judicial bodies which have acquired expertise because
their jurisdiction is confined to specific matters, are generally accorded not
only respect but also finality when affirmed by the Court of Appeals. For
as long as these findings are supported by substantial evidence, they must
be upheld.
A reading of the records reveals that the deceased was indeed a farm
worker who was in the regular employ of petitioner. From year to year,
starting January 1983 up until his death, the deceased had been
working on petitioner’s land by harvesting abaca and coconut,
processing copra, and clearing weeds. His employment was
continuous in the sense that it was done for more than one harvesting
season. Moreover, no amount of reasoning could detract from the fact that
these tasks were necessary or desirable in the usual business of petitioner.
Lastly, the private respondent was subject to the control of the
petitioner company. Xxx We do not give credence to the allegation that
the deceased was an independent contractor. Xxx The right of an
employee to be covered by the Social Security Act is premised on the
existenceof an employer-employee relationship – that having been
established, the Court rules in favor of private respondent.” (Gapayao, ibid.;
Emphasis supplied.)
2. Whether biological parents are precluded from being a beneficiary of an adopted

child, when adoptive parent predeceases the adopted child? -- Bartolome vs. SSS
And Scanmar Maritime Services, G.R. No. 192531, 12 Nov 2014.
Answer: NO. Adoptive parent’s death at the time of the adopted’s minority resulted in the
restoration of the biological parent’s parental authority over the adopted child.
Facts: John Corcol was employed as an electrician by Scanmar Maritime Services on

board vessel Maersk Dansell, and duly enrolled under the government’s Employees’
Compensation Program (ECP). While onboard ship, steel plates fell upon him causing his
untimely death in 2008. Subsequently, John’s biological mother Bernardina filed a claim
for death benefits as John was still single and childless at the time of his death at age 25.
SSS and ECC denied claim upon finding that John was legally adopted by Cornelio Colcol,
Bernardina’s grandfather, by virtue of a decree of adoption. Even assuming that Cornelio
had predeceased John on October 1987, Bernardina could NOT qualify as John’s
secondary beneficiary because “dependent parent” referred to under Article 167 (j) of P.D.
No. 626 refers to “legitimate parent” of the covered member, as provided for by Rule XV,
Section 1[ c] [1] of the Amended Rules on Employees’ Compensation. Bernardina could
not be considered a legitimate parent of John, having given up the latter for adoption to
Mr. Cornelio Colcol.
55
Issue: May the biological parent Bernardina be considered a lawful beneficiary of the
deceased John Colcol, notwithstanding having given him up for adoption previously?
Decision: YES, biological parent may be a beneficiary in this case. Rule XV, Sec. 1(c)(1)
of the Amended Rules on Employees’ Compensation deviates from the clear language of
Art. 167 (j) of the Labor Code, as amended.
Examining the Amended Rules on Employees’ Compensation in light of the Labor Code,
as amended, it is at once apparent that the ECC indulged in an unauthorized
administrative legislation. In net effect, the ECC read into Art. 167 of the Code an
interpretation not contemplated by the provision. Xxx Administrative or executive acts,
orders and regulations shall be valid only when they are not contrary to the laws or the
Constitution.
Thus, the word "relatives" is a general term and when used in a statute it embraces not
only collateral relatives but also all the kindred of the person spoken of, unless the context
indicates that it was used in a more restrictive or limited sense — which as already
discussed earlier, is not so in the case at bar. (Emphasis supplied)
In the same vein, the term "parents" in the phrase "dependent parents" in the afore-
quoted Article 167 (j) of the Labor Code is used and ought to be taken in its general
sense and cannot be unduly limited to "legitimate parents" as what the ECC did.
The phrase "dependent parents" should, therefore, include all parents, whether legitimate
or illegitimate and whether by nature or by adoption. When the law does not distinguish,
one should not distinguish. Plainly, "dependent parents" are parents, whether legitimate
or illegitimate, biological or by adoption,who are in need of support or assistance.
Moreover, the same Article 167 (j),as couched, clearly shows that Congress did not
intend to limit the phrase "dependent parents" to solely legitimate parents.
3. REITERATION OF PRINCIPLES REGARDING

ENTITLEMENT TO DISABILITY OR DEATH
BENEFITS
3.1 Burden of proof is upon the claimant to establish that the illness (hypertension) is work-
related before he may avail of disability benefits. Employee Gomera has failed to
present competent evidence, such as medical records of physician’s reports to
objectively substantiate his claim that there is a reasonable link between his work and
his ailment. His bare allegations do not, by themselves, make his illness
compensable. -- Edilberto Gomera vs. Social Security System, G.R. No. 183264,
26 Jan 2015.
3.2 In order for a beneficiary of an employee to be entitled to death benefits under the
SSS, the cause of death of the employee must be a sickness listed as an occupation
disease by the ECC; or any other illness caused by employment, subject to proof that
the risk of contracting the same is increased by the working conditions. In this case,
Systempic Lupus Erythematosus (SLE) is NOT listed as an occupational disease,
and hence, Estrella has to prove by substantial evidence the causal relationship
between her husband’s illness and his working conditions. Despite having submitted
a toxicology report, there is nothing on record proving the causal relationship between
Baylon’s work as a laboratory technician at the Chemistry Department of De La Salle
University. Having failed that, the claim must perforce be denied. – Estrella D.S.
Banez Vs. Social Security System and Dela Salle University, G.R. No. 189574,
18 July 2014.
2016 BAR QUESTION:

Baldo, a farm worker on pakyaw basis, had been working on Dencio's land by harvesting
abaca and coconut, processing copra, and clearing weeds from year to year starting January
56
1993 up to his death in 2007. He worked continuously in the sense that it was done for more
than one harvesting season.
[a] Was Dencio required to report Baldo for compulsory social security coverage under the
SSS law? Explain. (2.5%)
ANSWER: Yes. Dencio considered a regular employee, by his continuous and repeated
hiring.
[b] What are the liabilities of the employer who fails to report his employee for social security
coverage? Explain. (2.5%)
ANSWER; RA 8282; Social Security Act of 1997. -- Whoever fails or refuses to comply
with the provisions of this Act or with the rules and regulations promulgated by the
Commission, shall be punished by a fine of not less than Five thousand pesos (P5,000)
nor more than Twenty thousand pesos (P20,000), or imprisonment for not less than six
(6) years and one (1) day nor more than twelve (12) years or both, at the discretion of the
court: Provided, That where the violation consists in failure or refusal to register
employees or himself, in case of the covered self-employed, or to deduct contributions
from the employees' compensation and remit the same to the SSS, the penalty shall be a
fine of not less than Five thousand pesos (P5,000) nor more than Twenty thousand pesos
(P20,000) and imprisonment for not less than six (6) years and one (1) day nor more than
twelve (12) years. cdtai||| (Social Security Act of 1997, Republic Act No. 8282, [May 1,
1997])

Luis, a PNP officer, was off duty and resting at home when he heard a scuffle outside his
house. He saw two of his neighbors fighting and he rushed out to pacify them. One of the
neighbors shot Luis by mistake, which resulted in Luis's death. Marian, Luis's widow, filed a
claim with the GSIS seeking death benefits. The GSIS denied the claim on the ground that
the death of Luis was not service-related as he was off duty when the incident happened. Is
the GSIS correct? (3%)
Answer: No. The GSIS is not correct because Luis was just off-duty. A policeman, just like
a soldier, is covered by the 24-Hour Duty Rule. He is deemed on round-the-clock duty unless
on official leave, in which case his death outside performance of official peace-keeping
mission will bar death claim. In this case, Luis was not on official leave and he died in the
performance of a peace-keeping mission. Therefore, his death is compensable.
2014 BAR QUESTION:

Luisito has been working with Lima Land for 20 years. Wanting to work in the public sector,
Luisito applied with and was offered a job at Livecor. Before accepting the offer, he wanted
to consult you whether the payments that he and Lima Land had made to the Social Security
System (SSS) can be transferred or credited to the Government Service Insurance System
(GSIS). What would you advice? (4%)
ANSWER: Yes, the portability of benefits under RA 7699 would allow the transfer of the
payments made by Luisito and Lima Land from SSS to GSIS.
FOR THE 2019 BAR EXAMINEES:

GOOD LUCK AND GOD BLESS YOU ALL!!
UNLEASH THE FALCON IN YOU! SOAR HIGH, DEFY GRAVITY!!!
VERITAS ET FORTITUDO. PRO DEO ET PATRIA. ONE LYCEUM FIGHT!!!
SAPIENTIA REGNAT GO TAMARAWS!
ADA D. ABAD, 06 OCTOBER 2019

57

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2019 LABOR LAW BAR PRE-WEEK HAND-OUTS

FOR 2019 ADAMSON LYCEUM FEU BAR OPERATIONS

PART2 OF ABAD PRE-WEEK NOTES

G. SPECIFIC ISSUES ON LABOR STANDARDS

IMPORTANT PERLAS-BERNABE CASE: Toyota Pasig, Inc. v. De Peralta, G.R.

Thus, respondent's allegation of nonpayment of such monetary benefits places the

1.2. EMPLOYEES NOT COVERED BY PROVISIONS ON WAGES (Article 98, LC):

➢ farm tenancy / leasehold;

1.3 Wages; facilities and supplements.

Supplements constitute extra remuneration or special privileges or benefits given to

In short, the benefit or privilege given to the employee which constitutes an

1.4 PAYMENT OF WAGES

1.5 SOME GOVERNING RULES:

▪ “NO WORK NO PAY” PRINCIPLE. -- If there is no work performed by the

• CIVIL CODE PROVISIONS:

Art. 1705. The laborer’s wages shall be paid in legal currency.

▪ Art. 110, Labor Code. Worker’s preference in case of bankruptcy. — In the

Note however: Bankruptcy proceedings must first be instituted for

2015 BAR EXAM QUESTION: (III)

ALTERNATIVE ANSWER: No. The models are Benito’s employees. As such,

1.6 REPUBLIC ACT NO. 6727 AND MINIMUM WAGES

❖ Creation of the Regional Tripartite Wages and Productivity Boards which

❖ COVERAGE: The wage increases prescribed under Wage Orders apply to

❖ EXCLUSIONS: wage law: (a) Kasambahay; (b) Persons in the personal

❖ ADDITIONAL EXCLUSIONS: Distressed employers; retail/service

For a retail/service establishment to be exempted from the coverage of the

❖ CREDITABILITY: If expressly provided for and agreed upon in the

• Minimum wages must always be complied with.

• Provisions common to all Minimum Wage Laws issued by the

❖ Service contracts between Company (principal) and Agency: In cases of

• 2010 BAR QUESTION:

1.7 GENERAL RULE: WAGE DEDUCTIONS ARE NOT ALLOWED

ALLOWABLE DEDUCTIONS WITHOUT EMPLOYEE’S CONSENT:

a. SSS, Philhealth and PAG-IBIG contributions;

ALLOWABLE DEDUCTIONS WITH THE EMPLOYEE’S CONSENT:

a. Reasonable value of meals and other facilities;

IMPORTANT PERLAS-BERNABE CASE: || Ramos v. BPI Family Savings Bank,

2017 BAR QUESTION

Tarcisio was employed as operations manager and received a monthly salary of

ANSWER: Case law exempts wages of rank-and-file employees from

1.8 NON-DIMINUTION OF BENEFITS, EXPLAINED:

❖ Art. 100, Labor Code. Prohibition against elimination or diminution of

EXCEPTION TO THE EXCEPTION:

IMPORTANT: TSpic Corporation vs. TSpic Employees Union-FFW, G.R.

• As to length of time required to ripen into a corporate policy: The

• Elements for diminution of benefits:

• Question: When can a policy be considered to have ripened into a regular

Question: Will there diminution of salaries and benefits in this case?

2013 BAR QUESTION:

Is the union position meritorious? (8%)

2. THIRTEENTH MONTH PAY

▪ Such employees are entitled to the benefit regardless of their designation or

2.3 EXCLUSIONS or EXEMPTIONS FROM COVERAGE

1. Government and any of its political subdivisions, including GOCCs.

▪ “Its equivalent” includes Christmas bonus, mid-year bonus, cash

3. Employers of household helpers and persons in the personal service of another in

EXCEPTION: When demandable under a contract.

2015 BAR EXAM QUESTION:

2014 BAR QUESTION:

ALTERNATIVE ANSWER: NO. Principle of non-diminution of benefits apply. The

2017 BAR EXAM QUESTION:

2010 BAR EXAM QUESTION:

• Premium pay for work within 8 hours on: