a SUGGESTED ANSWERS to the 2018 BAR EXAMINATIONS IN LABOR LAW J a complaint against Norte University for the afier having been a. part-tiny 974. Narciso taught for two semesters an 4-1975, took a leave of absence from mntil 2003. Since then, bis contract has been renew. er, until November 2005 when he was tol nester and swe he could no longer teach because he was already 5 years old. Nor sity also denied Narciso’s claim for retirement benefits staring that on full-ime permanent faculty, who have served for at least five mminediately preceding the termination of their employment, can ava themselves of post-employment benefits. As part-time faculty member, Nai id sot aequie permanent employment starus under the Manual of Regula ‘: Private Schoois, in relation to the Labor Code, regardless of his le’ } Is Nareiso entitled to retirement benefits? (2.5' SESTED ANSWER: ‘ nt, Narciso '2) AS 4 part-time employee with fixed-term employ , Rule Il of the Rules is entitled to retirement benefits. Book V Implemencing the Labor Code states that the rule on retirement shall apply all 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, p: sate educational institutions faeulty members of pr to full retirement benefits even if the services ave not uous, and even if their contracts have been renewed afte their mandatory age of retirement.MLPERNATIVE ANSWERS: public Act No. 7641, parttimers are entitled to retirement benefits (De La Salle Araneta University ¥. Bernardo, GR. No 00808, February 13,2017). ANOTHER ALTERNATIVE A\ (a) Narciso ie not entiled to his retirement be wymare because of prescription. Money claims prescribes in 3 years (Ara 306). Narciso’s retirement claim accrued 2005, the year he was considered retired by the school. He should have Aled bis eaim in the year 2008. IE is emiled to retirement benefits, how should retirement pay be computed in the absence of any’ contract between him and Nore University providing for such benefits? (2.5%) SUGGESTED ANSWER: 'b) Tu the absence of any contract providing for higher retirement Deneiits, private educational institutions, including Norte University, are obligated 10 se¢ aside funds for the retirement pay ofall its part-time faculty members. A covered empioyee who retires pursuant to the Retirement Pay Law shall be entitled (o retirement pay equivalent ‘0 af least one-half (1/2) month salary for every year of service, a fraction of atleast six (©) months being considered as one whole year. One-half month salary shall meas fifteen (15) days plus one-twelth (1/12) of the 13th month pay and the eash equivalent of not more than five (5) days service incentive eaves. In total, this uid amount to 5 days for every year of service (De La Suile Araneta University x. Bernardo, G.R. No. 190800, February 13, 2017).yn Federation issued a charter certificate creating a rank-and-file » Employees Union. On the same day, New Neuman Employees Union petition for certification election with the Department of Labor and (DOLE) Regional Office, attaching the appropriate charter 2) The employer, Neuman Coxporation, filed a motion to dismiss the petition for lack of legal personality ‘on the part of the petitioner union, Should the motion be granted? (2.59%) SUGGESTED ANSWER: (a) No. The motion should be denied. Under Article 240 of the Labor Code (LC), a petition for certification election may be filed on the basis of a valid charter certificate issued to a chartered local by a duly registered federation. (b) The employer iikewise filed a petition for cancellation of union registration against New Neuman Employees Union, alleging that Nayon Federation already had a chartered local rank-and-file union, Neuman Employees Union, pertaining to the same bargaining unit within the establishment. Should the petition for ncellation prosper? (2.5 € SUGGESTED ANSWER: (b) No. The existence of another chartered locai under the same federation wi n the same bargaining unit is not among the grounds to cancel union registration under Article 247 LC, as amended by RA 9481 ALTERNATIVE SWER: (>) Pet ion for cancellation of union registration filed by employer Neurnan Corporation may prosper. While the employer may file a case as it is considered a pas interest in cancellation proceedings (Del Castillo, Asian Institute of Management v Asians Institute of Management Faculty Association, G.R. No. 207971, January 23, 2017}, the wnion’s certification may be revoked or cancelled if it appears that there are’ sufficient grounds for its cancellation viz., fraud or misrepresentation inthe election of officers xxx; fraud or misrepresentation in the ratification of constitution and by-laws. fing dire financial situation, Nicanor was prevailed ‘o voluntarily resign. In exchange, he demanded payment ‘month pay, and financial assistance, as promised by agement promised to pay him as soon as it is able to pay off employees. Five years later, and before pay Nicanor the amount promised to him, Nicanor ‘tack His widow, Norée. filed a money claim against the ional Labor Relations Commission (NLRC), including amount of the unpaid claim. She also claimed additional supposed resignation ietter was obtained from hi jue pressure and influence. The employer filed a motion to und that (A) the NLRC did not have jurisdiction over money 2 action has prescribed. 8) Does the NLRC have jurisdiction to award money claims including interest on the amount unpaid? (2.5%) SUGGESTED ANSWER: 7 The NLRC has jurisdiction over money clainis 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 2 claim for reinstatement. (Sec. 10, RA 8042, as amended by RA 10022. ‘} Assuming that the NLRC has jurisdiction, has the action prescribed?(2.5%) SUGGESTED ANSWER: (b) In Accessories Specialists, Inc. v. Alabama, (G.R. No. 16896 July 23, 2008), the Supreme Court held that the principle of promissory estoppel can apply as a recognized exception to the three-year prescriptive period under Article 291 (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 haye been no reason why Nicanor would delay the filingof the complaint, Great injustice would be committed if the mployee’s claim were brushed aside on mere technicality specially when it was the employer's action that prevented Nicanor from fi ALTERNATIVE ANSWER, () Ves, the action has unfortunately prescribed as there i¢ onh e-year prescriptive period for monetary claims under thy Labor Code as in the case of retirement benefits May Nicanov’s spouse suecessfully claim additional damages esult of the alleged unciue pressure and influence? (2.5%) STED ANSWER Norvie failed to establish that Nicanor’s consent was vit ym letter. In BMG Record the SC rail when he filed his resignati Aparecio, (G.R. No. 153290, Sepember 5, 20 that the matter of “financial as: ance’t 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 no unilaterally withdraw this voluntary act of termination of employment. ALTERNATIVE ANSWER: (©) No. In this ease Nieanor 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 prooi, the claim of dam:ges must fail (Del Castillo, Malixi » Mexicali Philippines, G.R. No. 205061, June 8, 2016) Natasha Shoe Company adopted an organizational stveamlining that resulted in the retrenchment of 550 employees in its main plant. Afte having been paid their separation benefits, the retrenched workers dear payment of retirement benefits under a CBA between their unio ‘management. Natasha Shoe Company denied the workers’ demand.1) What is the most procedurally peacefitl means to resolve this, dispute? (2.5%) ANSWER: (a) The parties may resolve this through plant-level mechanisms such as a labor-management committee or a grievance machinery under a collective bargaining agreement, (} Can the workers claim both separation pay and retirement benefits? (2.5%) SUGGESTED ANSWE (©) In Santos ». Senior Philippines, (G.R. No. 166377, November 28, 2008). the Supreme Court held that retirement benefits and separation pay are not mutually exclusive, and both benefits may be paid in the absence of a contrary gtipulation in the retirement plan and/or in the CBA. ALTERNATIVE ANSWER: (@) Yes. In the absence of any express or implied prohibition against it, collection of both retirement benefits and separation pay upon severance from employment is allowed. This is grounded on the social juitice policy that doubts should always be resolved in favor of labor (Goodyear Philippines, Inc. ¥. Angus, G.R. No. 185449, November 12, 2014). v Nelda worked as a chambermaid in Hotel Neverland with a basic wage of PhP560.00 for an eight-hour workday. On Good Friday, she worked for one (1) hour from 10:00 PM to 11 :00 PM. He: employer paid her only PhP480.00 for each 8-hour workday, and PhP70.00 for the work done on Good Friday. She sued for underpayment of wages and non-payment of holiday pay and night shift differential pay for working on a Good Friday. Hotel Neverland denied the alleged underpayment, arguing that based on long-standing unwritten tradition, food and lodging costs were partially shouldered by the employer and partially paid for by the employee through salary deduction. According to the employer. such vali deduction caused the payment of Nelda's wage to bebelow the prescribed minimum. The hotel also cl med that she was 10 preserved minim i diferent pay because hoel Workers vie a and may be assigned 19 Work at night a) Does the hotel have valid legal grounds to duct food and lodging costs from Nelda's basic salary? (2.5%) SUGGESTED ANSWER: a) In Mabeze v. NERC, (271 SCRA 670 /1997}), the Supreme Court established three requirements before the value of “facilities” such as food and lodging may be deducted from an employee's wages: first, ptoof must be shown that such incilities are customarily furnished by the trade; second, the provision of deductible facilities must be voluntarily accepted in writing by the employee; and finally, facilities must be charged ar fair and reasonable value. In the case at hand, the second and third requisites on voluntary acceptance of deductible facilities in writing, at fair and reasonable value, was not established, ALTERNATIVE ANSWER: (a) No. In Atok Big Wedge Association v. Atok Big Wedge Company, (GR. No. L-7349. July 19, 1955), the Supreme Court 4iistinguished facilities from supplement. Supplements constitutes extra remuneration given to laborers above their wage. Facilities are items of expense necessary for the laborer’s and his family’s existence and subsistence. Board and lodging are treated as supplement if the company benefits irom the employees noc going home anymore or not leaving his svork station to eat. Since Nelda is a chambermaid, her board and lodging should be treated as supplement. (b) Applying labor standards law, how much shguld Nelda be paid for work done on Good Friday? Show the computation in your test booklet and encircle your final answer. (2.5%)by Asan employee paid PRE 70 an hour, Nelda was entitled t0 an 100% of he il pay. Nelda should be Briday, plus 10% for night differe paid a (otal of PAP 154.00 for working that da vi \ certification election was conducted in Nation Manufactori Coxporation, wincreby 55% of cligible voters in the bi Voies. The results were as follows: Union Nana: 45 vot Union Nada: 40 votes Union Nara: 30 votes No Union: 80 votes: Union Nana moved to be declared as the winner of the certification election ‘an Union Nana be declared as the winner SUGGESTED ANSWER: (a) Union Nana cannot be immediately declared as the winner. run-off election pursuant to Article 268 of the Labor Code (LC) must be first be conducted. A run-off election is requi since the present ease involves an eleetion which provided for ture or more cholees. with no choice receiving a majority of the valid votes cast, and the (otal number of votes for all ber of vores contending unions being at least $0% of the nui cast (b) Assume that the eligibility of 30.voters was challenged during the pre-election conference The ballots of the 30 challenged voters were placed inside an envelope sealed by the DOLE Electio Officer. Considering the said envelope remains sealed, whal should be the next course of action with respect (0 the s challenged votes? (2.5%) ‘ + SUGGESTED ANSWER: 4) Since the challenged votes may materially affect the results of the election, and may in fact even give Union Nada or Union Nara an absolute majority, then the said‘allenged votes should be opened. Pursuant to Rule 1X, Section 11 of the Rules Implementing Book V of the Labor ed votes shall be Code, the envelope with the challeng opened and the question of eligibility shall be passed upon by the DOLE med-arbiter, ative engaged in the promotion of ical devices for Northem Pharmaceuticals, clinics to inform them of the chemical s products, At the end of every day, 00 plus PhP150.00 "productivity 3h-month pay, should the No. The second paragraph of Section 5(a) of the Revised Guidelines Implementing the 13th Month Pay Law states that “employees who are d or guaranteed wa ge plus commission are slso entitled co the mandated 13th month pay. based on thelr total earnings during the calendar year, ie, on both their fixed or guaranteed wage and commission." However, the SC in Philippine Duplicators, Ine. ». NLRC, 241 SCRA 386 (GR. No. 110068 February 15, 1995), dectared the aforesaid provision aull and void with respect to those medical representatives whe do nor obtain producti ty allowances by virtue of generated sales. Such allowances are in the nature of profit-sharing) bonuses or commissions that should be prope-ly excluded from the ambit of the term. “basic salary” for purposes of computing 13th month’ pay due to empioyees. ALTERNATIVE ANSWER : ‘ Yes, the produetivity aliowance should be ineluded in the computation of the 13° month pay. The said allowance is a fixed amount and made part of Nico’s d ly compensation, and as such this isdlemandable and enforceable as a matter of right. Thé“basic salary” of an 1g the 13" month pay include all employee for the purposes of compu rings paid by his employer (or services rendered lout does not include allowances and monetary benefits which are ot considered or integrated as part of the regular or basic salary (Pr 54, March 28, 2 LayaMananghays & Com GR. ANOTHER De Tarlac L Yes. Central Aeucarera De Tarlac ». CetralAzncarera 1049, July 26,2010), pronounced that the L3th-month Union , (GR, No pay mandaied by Presidential Decree No. SSL represents, an additional income based on wage but not part of the wage. It is equivate ned by an employee within fovelfth (W/L2) of the total basie salary cetlendar year NSWER: The issue in this case fr whether oF not fo include “productivity allowance” iu the computation of 13" month pay. IC what is contemplated is productivity allowance in essence, i¢ should be excluded according t0 he valing in Bove-Takeda ease, but the nature of the allowance in his ease is ‘sot clear— whether it is really productivity allowance, or is just called ‘productivity allowance” in naine, If there no showing that the allowance is really a productivity allowance, we must look at Avticle 4 of the Labor Code, that in ease of dbscurity oF am as toi the laborer: Based on the with the facts, the productivity allowance should be included in the computation, as the nomen (ure of “productivity nilings moreover, the facts show that Niew receives the the facts show that Niew reeeives th allowance everyday. Th 10 condition with regard tie “productivity allowance” as to periormance. In the old definition of bonus, which docs not include basic wage, i should be conditioned on particular hours‘ vin athanicl has been a salesman assigned by Newmark Enterprises Nev) sor nearly rw years at the Manila office of Nutrition City, Inc (Notion City), He was deployed pursuant (0 a service agreement between Sieharle and Nutrition City, the salient provisions of which were as follows (@) the Contractor (Newmark) agrees tg perform and provide the Hea (Nusston City), on a non-exelsie basis, suc Tasks or cr ee onaidered contac tnt existing IS. 85 Maybe needed by te Clot fom ne b) the Contractor shall employ the necessary personnel like helpers, salesmen, and drivers who are determined by the Contractor to be efficiently trained; (©) the Client may request replacement of the Contractor's personnel if quality of the desired result is not achieved; 14) the Contractor's persone!’ will comply’ with the Client's policies, rules. and regulations; and 2) hk 's ovo service vehicles and necessary equipment will be utilized in carrying out the provisions of this Agreement. Contracto When Newmark fired Nathaniel, ie filed an illegal dismissal case against the wealthier company, Nutrition City, Inc., alleging that he was a regular ‘employee of the same. Is Nathaniel correct? (2.5% SUGGESTED ANSWER: Yes, Nathaniel is correct. Similar to the ease of Coca-Cola Borilers Philippines, Inc. . Agito, (G.R. No. 179546, February 13, 2009), the lack of control by the Contractor (Newmark) over the worker Nathaniel can be gleaned from the Service Agreemen ts apparent that Newmark has to comply wit Nutrition Cis regulations, and that Nutrition €ity has the Hiaht to request the replacement of Newmar’ porsniel [Tes keys apparest iat the) Agreemeb didnt lac} rei sede tbe Seca ates oat wt Soc otha-dolting tthe conclusion that Newmark did not obligate itself to perform an identifiable Job, work, or serviee. City Nathaniel, thus, was under the contro! of Nutrition ‘With respect to the service vehi jes and equipment, these may not be considered as substantial capital on the pare of Newmark, as the facts do not establish their sufficiency to carry out the Agreement. The presen ofNewmark’s vehicles and equipment did not necessarily preclude the use of Nutrition City's own capital and asset ALTERNATIVE ANSWER: Nathaniel’s contention is wot correct, He bs wot a regular employee of Nucition buat rather of Newmark Enterprises. Assuming that Newmark has 3 DO 174 certification, this is a valid job contracting arrangement especially so that the Newmark has sufficient capitalization in the form of tools. equipment. machineries xxx and that Nutrition has no control over ‘he manner and means by which Newmark and its employees are to do th x detachment non-commissioned officer of the Am Nueva Ecija, He and some other members ission from their Company Commander for_an ‘0 Nueva Vizcaya to settle some important 1 ymander orally approved their request and allowed «lem arms as the place they were going to was classified as a "eriic arrived at the place past midnight; and as they wer from tieycle, one of his companions accidentally dropped his rifle. wh firea a single shor, and in the process hit Sgt. Nemesis fatally. The sto was pi dental. At the time of his death, he was still legally marc Nelda, but had been separated ce facto from her for 17 years. For the las years of his life. he was living in with Narda, with whom he has ow children, Since Narda works as kaambahay, the two children lived with te séparents, who provided their duily support. Sgt. Nemesis and Narda money 19 them every year te pay for their school mation, ‘Nelda and Narda, both for themselves and the later; also on behalf of he minor children, separately filed claims for compensation as a result of the dea! of Sgt. Nemesis. The line of Duty Board of the AFP declared Sgr. Nemes death to have been “in line of duty”, and recommended that all benefits dive Sgt. Nemesis be given to his dependents. However, the claims were denica by GSIS because Sgt. Nemesis was nor in his workplace n&r performing, his du as 4 soldier of the Philippine Army when he died (a) Are the dependents of Sgt. Nemesis entitled go compensatic sult of his death? (2.5%) ANSWER: (a) The death of Sgt. Nemesis arose out of and in the course of his employment as a soldier on active duty in the AFP and henecompensable. The concept of 2 “workplace” cannot always be literally applied to a soldier on active duty. Sgt. Nemesis had permission to go to Nueva Vizeaya and he and his companions had permit to carry their firearms which they comld use to defend themselves when attacked. \ soldier on active duty is sa day since he’ can be called upon really on duty 24 hu stacus, which Sgt. Nemesis was mot, at the time of his death (Hinoguin v. ECC, G.R. No, 8430, Aprit 17, 1989) (b) as sn Nelda and Narda, who shoul’ be entitled t0 benefits? (2.5%) 1D ANSWE (b) To be considered as a beneficiary, the spouse must be the legal spouse and living with the employee at the time of his death, Nelda. as the surviving spouse who has been separated de facto from the deceased employee. yy still however be entitled if fhe separation was due fo the covered employer's abandonment of the spouse without valid reason, or for other justifiable reasons, Narda, not being a legitimate spouse, is not entitled to the benefits: however, the ECC may act referee and arbitrator between €vo (2) elaima 8 to help each other reach a mutually acceptable compromise se{tlement of allocating the compensation among theraselves and their dependent children (Sainar Mining Ce. ecg ». 1-29938-39, March 31, 1771). (c) Are the minor children entitled to the benetits consider were not fully dependent on Sgt. Nemesis for support? SUGGESTED ANSWER: (©) Being a dependent does not mean absolute dependency for th necessities of life, but rather, that the claimant looked up « and relied on the contribution of the covmenus of living as determined by his position in life. One necd not be in the deceased’s household in order 10 be a dependent. (Malate Taxicab v. Del Villar G.R. No. L-7489, Feb, 29. 1956). Nonato had been continuously employed anc déployed as a seaman who performed services that were necessary and desirable to the business of N rain Shipping, through its local agent, Narita Maritime Services (Agency), in accordance with the 2010 Philippine Overseas Employment Administration Standard Employment Contract (2010 POEA-SEC). Nonato's last contract (fo five months) expired on November 15, 2016. Nonato was chen repatriated due to a “finished contract." He immediately reported to the Agency and complained that he had been experiencing dizziness. weakness, and difficulty in breathing. The Agency referred him to Dr. Neri, “sho exemined, treated, and prescribed him with medications.. After a few-months of -freatment and consultations, Nonato was declared fit to resume work as 2 seaman. Nonato went back to the Agency to ask for re-deployment but the Agency rejected his application, Nonato filed an illegal dismissal case against the Agency and principal, with a claim for total disability benefits based on the ailments that be Seveloped on board N- Train Shipping vessels. The claira was based on the certification of bis own physician, Ds. Nunez, that be was unfit for sea duties because of his hypertension and diabetes. (@) Was Nonato a regular employee of N-Train IGGESTI Shipping? (2 ANSWER: (@) No. Seafarers are considered conteactus! employees. ‘They cannot be considered as regular employees under Article 280 of the Labor Code, Their employment is governed by the contracts they sign every time they are hired or rehired and th eaopiyiles a fettetadbda wna) ee ebb adetred ‘Their employment is contractually fixed fora certain period of time (Millares §) NERC, G-R. No. 110524, July 29, 2002). (a) Can Nonato‘successtully claim disability benefits against \/-Train Shipping and its agent Narita Maritime Services? (2.5%) SUGGESTED ANSWER: (b) No. Nonato was repatriated due to a finished contract and not due to any accident or illness he suffered while on board N- ‘Train's vessel. Moreover, Nonato was declared fit-to-work by a4fhe company-designated physician. Under the 2010 PORA SEC. if a doctor appointed by the seafarer dis: with the mnaced physician, © third assessment of the company-des actor may be agreed upon jointly between che employer and the seafarer. The third doctor's decision shall be final and inding on both parties. In this case, no third doctor was appointed. Thus, the fit -work assessmént by the company designated physician stands. PLANATION: (b) No. Nonato cannot claim disability benefits. He was not lly repatriated put repatriated due to a hed Although the seafarer is repatriated for completion of his contract. however, if i¢ can be shown by substantial evidence that he acquired his illness during the term of his conact or that his work conditions caused or atl imereased the risk of ontracting the disease, then his illness is compensable as it is work-connected (MallariMogat iImterorient Maritime Enrerprises, Inc. G.R. No. 232892. April 4, xI ‘You favorite selative, Tita Nilca, approaches you and seeks your advice fer treatment of her kasambahay, Noray, Tita Nilda shews you a document a "Contract of Engagement" for your review. Under the Contract of gagement, Noray shall Be entitled to « rest day every week, provided that she may be requested co work on a rest day if Tita Nilda should need her services hat day, Tite Wilda also claims that this Contract| of Engagement should embody all terms and cgaditions of Noray's wark as the engagement of a kasombohay is a private matter and should not be regulated by the State (Tegan ea ii i eevee eaee ayes ae 0) SUGGESTED ANSWER: (a) Tita Nilda is incorrect The relationship between Tita Nilda and. Noray is 2 employer-employee arrangement that isregulated by the police power of the State, Through she Bata Kasambahay (R.A. 10361), the State recognizes this employment tablishes minimum labor standards for relationship and income domestic workers, toward decent employment protection and respect for’ human anced coverage of socia rights, and strengthened social dialogue. ‘Also, since domestic nin vulnerable working workers are generally working woi conditions. the State regulates dor worker employment (0 prevent abuse and exploitation and uphold the gender rights of domestic workers. (b) Is the stipulation that she may be requested to work on a resi day legal? (2.5%) D ANSWER: * (b) Yes. Such a stipulation is legal as it states that Noray may auly he “requested” to work on a rest day, thereby recognizing that the consent of Noray is needed in order to waive her right to a weekly rest day. Section 24 of the Kasambahay Law allows both the employer and domestic worker to agree on cert arrangements to offset, waive. or accumulate rest days, subject to payment of appropriate wages and benefits (c) Are stay-in family drivers included unéer the [asambahay ‘ (©) No. Family drivers are not included under the Kasambahay Law. A “Kasambahay” fers to amy person engaged in domestic work within an employment relstionship such as, but not limited fo, the following: general househelp, nursemaid or “yaya”, cook, gard. +, o aundry person, but shall exclude any persoq who performs domestic work only; occasionally or sporadically and not on an occupational basis. 16ALTERNATIVE ANSWER: (©) The Republic ct No. 10361 does not exciude family. drivers from the coverage of the Kasambatay ta, it is-only in the Implementing Rules that the family drivers were excluded, Note that the Labor Code explicitly includes “family drivers and other persons in the personai service of another in the coverage of the Labor Code, and hence, it is believed that the family drivers should fait within the ambit of the Kasambahay Law. The exelusion of driver in the Implementing Rules is without basis. Domestic helper or househelper or domestic servant shall refer to anty person, ‘vhether male of female, who renders es in and about the employer's ome and which services are usually necessary or desirable for the maintenance aad enjoyment thereof, and ministers exclusively ¢o the personal comfort and enjoyment of the employers’ family. Such definition covers family drivers, domestic servants, laundry women, yayas, gardenérs, houseboys and other similar househelps (4pex Mining 251 (1991). “ompany, Ine. ». NLRC, 195 SCRA xD ‘ Netia worked as an Executive! Assistant for Nesting, C Corporatién. One day, Nefting called Nena into his office and showed hes lewel pictures of woinen in seductive poses which Nena found offensive. Nena complained before the Gerteral Manager who, in tum, investifated the matter and recommended the dismissal of Nesting to the Board of Directors. Before the Board of Directors, Nesting argued, that since the Anti-Sexual Harassment Law requires the existence of "sexual favors," he should not be dismissed ftom the service since he did not ask for any sexual favor from Nena. is Nesting correct? (2.5%) ’ ‘of Noriic Nesting’s argument on lack of sexual favor is incorrect. While his actions require further proof of being a “sexual favor” in terms of criminal bility under RA 7877, he may still be held liable under thi just causes of termination in article 297 of the Labor Code. In Vitlorama v. NLRC a JGolden Donuts, (G.R. No. 106341. Septembe! 2, 1994), the Supe held that a nloyee is bound by more & work ethics with ahi standard of responsibility. Se ssment of » subordinate oumts 10 “m0 1 perversity” which previ for dismissal due fo lack of trust and confides ALTERNATI eating is wot correct. Section 3 paragraph # relation to paragraph (y) states of RA 7877 states: “Ils * work-related 0° employorent ment, it is conamitted when sexual harassment results in an intimidating hostile or offelsive environment for the employee 1 p 124617, April 76, 2000), the Supreme Court ruled that the gravamen 0{ te offens Philippines Acolus Antomative United Cor. NLRE, (G vecuat harassment f not the wiokntion of te employee's sexuality but the winage of power by che employer. in the Rapala <2 “ No. 155831. “Fobruany 18, 2008), sexual harassment was $id (9 pe an imposition of misplaced superiority. The fact that no sexual favo# 98 asked by Nesting woes not mean be aid not violate RA. 7877. His act of showing lewd pictures to 2 subordinates is clearly sexual harassment. ANOTHER ALTERNATIVE ANSWER: Nesting is mot) correct. Tu @ work-related” or employment cevironmgat, spun) harassment commited When, Nile who is the srey ot tenn, sleeper nade pictures af womdaits Hints poses, peers ata (dex ened, in| an, ncamatag | HAE of offensive environment for Nena (See 3 (2) Oh RA 7877; Dominge » Rayala, GR. No. 155831, Feb 18, 2008)- >a Nicodemus was employed 4s 2 computer programy, by Network Corporation, « telecommunications “in He has been’ coming, to work in sh Corpor sin violation of the “preseribed uniform Pony hase on 0 and ai regulations. The company hum rescues anager wou Fae cig gam Lo Gays to comply wit te come) niform policy 8Nicodemus assetted that ‘wearing shorts and. sneakers made. him more productive, and cited his above-average output, When he came to work still in Violation of the uniform policy, the company sent him a letter of termination Df employment. Nicodenns filed an illegal dismissal case The Labor Arbiter fuled in favor of Nicodemus and ordered his reinstatement with backwages. Network Corporation, however, refised to reinstate him. The NLRC I* Division sustained the Labor Arbiter’s judgment. Network Corporation still refused to reinstate Nicodemus. Eventually, the Court of Appeals reversed tie decision of the NLRC and ruled that the “dismissal was valid. Despite the Feversal, Nicodemus still filed a motion Zor execution with respect to I accrued backwages, (a) Were there valid legal grounds to dismiss Nicodemus from hi cemployment?2.5%) TED ANSWER: (a) Yes, Nicodemms clearly committed willful disobedience of Inwtiul orders issued by the Network Corporation, with respect to the unite ‘m policy. This is a ground for termination under Article 288(2) of the: Labor Code. ALTERNATIVE ANSWER: (a), The “dismissal too harsh” doctrine may be joked which means the illegal dismissal case fi led by Nicodemns may prosper. it may be argued that the “uniform policy” need not warrant missal a penalty for violation as it may have no direct bearing on company operations. This is in the context of Nicodemus? above-average performance as an employe (o)| {Should Nicodemus’ moti for execation be granted? SUGGESTED ANSWER: () Yes. In Garcia ». Ph ppine Airlines, Ine..( GR. No. 164856, Janvary 20, 2009), the employer who did not reinstate an employee pending appeai may be held liabie for wages of the dismissed employee cov fg the| period frorn the time he was ordered reinstated by the Labor Achlter om the reversal of the NLRC's detision by the Court of AppealsNelson complained before the DOLE Regional Office about Neely Sorporation’s failure tc pay his wage increase amounting to PhP5,000.00a mandated ina Wage Ovder issued by the Regional Tripartite Wazes and Productivity Board. Consequently. Nelson asked the DOLE to immediately issue an Order sustaining his money claim. To his suprise, he received « notice Fom the DOLE to appear before the Regional Director for purposes of conciliating the’ dispute between him and Needy Corporation. When Conciliation before the Regional Divector failed, the latter proceeded to direct both partes to submit theit respective position papers in relation to the di Needy Corporation argued, that since Nelson was willing to settle for 75 his money claim during conciliation proceedings, only a maximum of 75% of the said money claim may be awarded to him. (a) Was DOLE's action to conduct mandatary’ conciliation in light of aint valid? (2.586) SUGGESTED ANSWE) (a) Yes, In relation t R.A. 10396 or the “Mandatory Conciliation-Mediation Law”, Article 234 of the Labor Code provides that “all issues arising from labor and employment shall be subject to mandatory conciliation-mediation. ‘The Labor Arbiter or appropriate DOLE agency or office that has risdiction over the dispute shall entertait only endorsed or referred cases by the duly authorized officef.” (b) Should the Regional Director sustain Needy Corporation’ argument? (2 SUGGESTED ANSWER: (b). No." Article 239 of the Labor Code proyides that the information and statements given in confidence at «he coneiliat nemediation proceeding: shal! be «rented as privileged ‘comm ication and shall not be used as evidence in any Arbitration proceeding, exeept when there is 9 waiver of covifidentiality. In. the present case, Nelson's willingness to settle for 75% of his money claim may not ne used against him in the money claims ¢ before the Regional Director di the confidentiality rule. ! 20vexturn Compontion employed Nini and Nono, whose asks involved rece iis rank-and-Fle employees engaged in company eee i and Nono ave required to ensutt that auch employees obey Company rules and regulations, and recommend to the company’s Human Recnurees Department any required disciplinary action against erring Employees, in Nextum Corporation, there are two independent unions representing rank-and-file and supervisory employees, respectively. (a) May Nini and Nono join a union? (2.5%) SUGGESTED ANSWER (a) Yes. Nini .d Nono, in effect, are supervisor’ as defined under ‘Article 219(m) who may join a supervisory union pursuant te Article 255 of the Labor Code. (a) ' No. Nini and Nono are confidential employees as they have access to confidential labor relations information. The broad rationale behind this rule is that employees should not be placed in a position involving n potential conflict of interest (San Miguel Corp. Supervisors and Exempt Employees Union: ¥. Laguesma, 277 SCRA 370 [1997). (b) May the two untons be affiliated with the same Union Federation’? 5%) (h) # Yeu Article 255. as amended by Republic Act,9481, allows a Fanicandefile union and 4 supervisors” tunion operating within ‘the same establishment/to join one and the same federation ot nacional union as affiliates thereof. XVI Nagrab Union afd Nagrab Corporation have an existing CBA which contains the following provision: "New employees within the coverage of the bargaining [unit who may be regularly employed shall become members of Nagrab Union. Membership in good standing vith the Nagrab Union 1s arequirement for continued employment with Nagrab Corporation ® Nagrab Corporation subsequently acquired all dhe assets and tight ube Corporation and absorbed all of the Iatter’s employees. “Nagiab Union immediately demanded enforcement of the above-stated CBA provisinn with respect to the alsorbed employees. Nagrab Comporation refused on the ground that this shoud thot apply t0 the absorbed employees who were torn employees of another corporation whose assets and rights i had acqy ‘orporation comect refusing ‘© enfor respect to the absorbed employees? ( May @ newly regularized employse of Nagrab Corporation sho not part of the absorbed! employees) refuse to join Nagtab \n0 ED ANSWER (a) Nagrab Corporation's argument that the union seenriey clause should not apply co absorbed employees resulting trom the acquisition is untenable. (n BPI Employees Union-Davao Cini FUBU (BPIEU-Davao City-FUBU) ». Banc of the Philippine Islands, (G-R. No. 174912. July 24, 2013), the Supreme Court ruled that the ibject ninion security clause does not make a 4istinetion as to how a regular employee should attain such ‘ status as a “new employee” in order tobe covered by the clause. Absorbed employees as a result of merger or acquisition of assets and rights betweer vo corporations. ‘erefore, should be considered ar “new ployees” of the surviving or aequiring corporation. (6) How would you advise the buman resources manager of Nagrab Corporation to proceed? (2.5%) \GGESTED ANSWER: (). "The HR Manager. should heed the Supr proscription in Alabang Country Club, Ine. ». NERC, 170287, February 14, 2008), Volving termination of employment due to enforcement of a union security clause. The following requirements inust be observed: 1) The union security clause is applicable 2) The certified bargaining agent is requesting for enforcement of si ch clause; and3) There is sufficient evidence 10 support the sole and exclusive ‘bargaining agent's decision to expel the employee from membership. Upon compliance with the legal requirements om the conduct of a strike Navarra ‘Union staged 4 strike against Newfound Corporation on account of collective bargaining deadlock. During the strike, some members of Navara Jnion broke the windows and punctured the tires of the company-owned buses The Secretary of Labor and Employment assumed jurisdiction over the dispute (a) Should all striking employees be.admitted beck to work upon the assumption of jurisdiction by the Secremmy of Labor and Employment? Will these include striking employees wha damaged company properties? (2.5%) TED ANSWER: (a) Yes. Under Article 273(g) of the Labor Code, all striking employees sh it immediately re awn to wort: and the employer shall immediately resume operations and i-admilt all workers under the same terms and conditions prevailing before the stvike or Tockont. Regarding the striking union members who damaged company property, the employer should still reinstate them, but after theit reinstatement, the employer may institute che appropriate inary proceedings, or raise the matter on the illegality of the strike on the grewnd of violence and illegal sets committed during the strike befare the Secretary of Labor, and Employment assuined jurisdiction, ALTERNATIVE ANSWER (@) Yes. all striking employees should be admitted ¢o work upon assumption of jurisdiction hy the Secretary of DOLE. The uance of an assumption order by the Weeretary automatically carries with it a return-to-work order. even if n to work is not expressly stated in theassumption order (Telefunken Semiconauctors Employees Union-F FW v Court of Appeals, 318 SCRA Se (2000) (b) May the company admit strikers only by restoring them 10 payroll? (2.5%) SUGGESTED ANSWER: (b) As» general rule the answer is no, as actual reinstatement is envisioned by Article 278(g) of the Labor “ode, The purpos of the law is to bring back the workers to rheir original work, uncer the same terms and conditions prevailing before the strike ANSWER (b) Yes. payrolt reinstatement is acceptable, if there” are compelling reasons like in the Nuwhraing Dusit Horel case GR. No, 16394: November {1, 2008) where the employees ‘were not physically reinstatement for they shaved thei heads bald, or i the UST ». NLRC case (G-R. No. 89920, October 18, 1990) where ¥ tater ¢ was not possible because it was ready the middle of the semester XVII [Nestor aod Nadine hive been living in forthe Jase 10 years without she benefit of métringe, Their union has produced four children. Nadine was three months pregnant with her 5® child when Nestor left her for another woman, When-Nadine was eight months pregnant with her S* child, she applied for matemity Ieavs benefits. Her employer refused cn the ground that ts vas already her 5* pregnancy and that’ she was only living in with the father of i child, who is nov jn a relationship with another woman, When Nadine birth, Nestor appiied for paternity leave benefits. His employer also denied the application on the seme grounds that Nadine's employer denied her appiication@ SUGGESTED (a) Yes, Nadine is not entitled to materni' benefits since it is ont available for the Grst four (4) deliveries or miscarriages. On mand that the other hand, her employer cannot refuse on the g1 Nadine was only living in with her partner since a valid marriage is not a condition for the grant of maternity leave benefits ‘an Nestor’s employer legally deny bis claim for p benefits? (2.5%) SUGGESTED ANSWE] (b) 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 wigh. xIX Northeast Airlines sent notices of transfer, without various airports in Mindanao to| anticipate robust passenger volume growth in the ares. Noh Union, representing rank-and-file employees, filed wnfeir labor practice and ‘egal | dismipsai| cases before) the|| NERC, | citing. | among \ehers! she inconvenience of the 50 concerned employees and ‘inion aiscrimination. as 8 of the 50, concerned ground crew personnel were union officers. Also, th Union argued that Northeast Airlines could easily hire ndditional employes fiom ‘Mindanao to boost: its ground operations in the Mindanao airpotts. ‘(@)__ Will.the transfer of the 50 ground crew personne! amount i illezal dismissal? (2.5%) . 3 a 2sGESTED ANSWER: @ ALTERNATIV. @ ‘Yes. The transfer of an employee is an exercise of » manager prerogative, which must be exereised without grave abuse of ‘cretion, bearing in mind the basic elements of justtce and fair play. Such transfer cannot be used as 2 subterf ge by the ployer to rid itself of an undesirable worker. In particular the employer must be able to show that the transfer is not und irable, inconvenient or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges, and other benefits. Should the employer fail to overcome this burden of proof, the employee's tra shall be tantamount to constructive dismissal which exists when an act of clear discrimination, insensibility or disdain by an employer has become x unbearable to the employee, leaving him with no option but to forego with his continued employment (Best Wear Garments ». De Lentos, GR. No. 181281, December 5, 2012). Ts the present case, the impending transfer of 50 employees based in Luzon to Mindanao, allegedly borne out of business necessity, is unreasonable and inconvenient to the concerned employees and their families. It was not shown also € Northeast Ai ines looked into the option of ing workers from Mindanao to unis counters in the Mindanao airports ANSWER: No, As @ management prerogative. the employer has) the inherent right ¢o transfer or assign employees in the pursuance of its legitimate busines: interest subject only to the condition thac it is not motivated by diserimin: ion or bad faith (PT&T Laplana, 199 SCRA 465 (1991). Xt is the prerogative of management to transfer employees where they can be most useful to the company (Pharmacia anu! UPD JOHN. Inc. ‘now 26Pfizer Philippines, Inc] %. Albayda, Jr. G.R. No 172724, August 23, 2010), ‘Che mere fact that it would be inconvenient does not by itself make the transfer illegal (DSS Security». VLR¢ 325 SCRA 157 (2000). (©) Will the unfair labor practice ease prosper? (2.5%) @) No. g whether Northeast airlines’ proposed (wauster amounted co an unfair labor practice or interference with, restraint or coercion of thi employees’ exercise of their right te selforganization, the “totality of conduct doctrine” test. should. be applied,, Insular Life Assurance, Co," Li. Employees Association-NATU v. Insular Rife Assurance Co. Lid. GR. No. 1-25291, January 30, 1971. A finding of unfair tabor practice should not be based on a single act in isolation, but should be viewed on the basis of the employer's acts outside of the bigger context of the accompanying labor relation situation. In the case at hand, Northeast Airlines’-act of transferring the 50 employees, while it may amount to constructive dismissals, cannot (ransiate into an unfair labor practice, absent any other indicia of auti-union bias on the part of the Company t | *\ 20% | { | In Northem Lights ‘Corporation, union members tad, Ned, and Nod sought permigsior, from the company| to distribute’ flyers with respect te a ‘weekend union activity. The company HR manager granted the request through 4 text message sent to another union member, Norlyn. While Nad, Ned) and Nod were disuibuting the Ayers at the company assembly plant, « company supervisor barged in and demanded that they cease fom distrbuting the flyers. stating that the assembly Tine employees were trying to beat © production deadline and were thoroughl distracted. Nor'yn tied to” show the HR managers text message authorizing flyer distribution uring work. hours, but the supervisor brushed i aside,SUGGESTED ANSWER: (a) Yes. The supervisor of Nad. Ned and Nod directly interfered th union activities and ultimately with the right co self organization. Good faith can be ascribed to Nad, Ned and Nod": actions, as prioy permission was obtained thru the HR Manager who apparently failed to communicate “such permission to the plant supervisor. ‘ ALTERNATIVE ANSWER: (@) No. Unfair labor practice refers ro act that violate the workers’ right to orgenize. ‘The prohibited acts are related to the workers’ right to seif-organization, and to the observance of the collective bargaining agreement. Without this element, the acts of the Northern Light Corporation in suspending Nad, Ned and Nod for violating company rules (on trespass and hhighly-limited activities during work ours). even if unfair, are nor unfair labor practices (General Santos Coca-Coia Plant Free Workers Union-TUPAS v Coca-Cola Bottlers Phil, Intc., GR No. 178647, February 13, 2009). *(bi - Assume the NLRC ruled in favor of the Union. The Labor Arbiter judgment included, among others, «n award for moral. and exemplary damages at PhP50,000.00 each for Nad, Ned, and Nod. Northem Lights Corporation argued that any award of cama should be given to the Unien, and not individually to its m=mbe Is Northern Lights Corporation correct? (2.5% (b) No. in Digitel Telecommunications Philippines, Inc. v. Digitel Employees Union (DEU), G-R. No. 184903-04, October 10, 2012, the Supreme Court ruled that the award of moral and 28exemplary damages in illegal dismissal cases (applicable to suspension) resulting from unfair labor practices may be made in individual or aggregate amounts. if the offended parties can bbe identified, then damages may be awarded individually, such as in the ease at hand. Wie ly bi LPT