LABOR LAW MIDTERM

1. I will grant the claims of Lina. Under the POEA disciplinary procedure, dismissal for
just cause may be done by the Master through furnishing the seafarer with written
notice except if there is clear and existing danger to the safety of the crew and vessel.
In this case, Lina was not accorded by her rights to procedural due process, there being
no compliance with the provisions of the POEA-SEC.

A valid dismissal requires both a valid cause and adherence to the valid
procedure of dismissal. The employer is required to give the charged employee at
least two written notices before termination. One of the written notices must inform
the employee of the particular acts that may cause his or her dismissal. The other
notice must "[inform] the employee of the employer’s decision." Aside from the notice
requirement, the employee must also be given "an opportunity to be heard."

Being prematurely terminated, and there is no showing that the termination is based on
lawful or valid grounds, the employer will be ordered to pay Lina her salary
corresponding to the unexpired portion of her employment contract.

2. I will grant the claims of Luisa. Indeed, employers have the prerogative to
impose productivity and quality standards at work. Failure to comply may be a
just cause for their dismissal.  While the law acknowledges the plight and vulnerability of
workers, it does not "authorize the oppression or self-destruction of the employer."
Management prerogative is recognized in law and in our jurisprudence. This
prerogative, however, should not be abused. It is "tempered with the employee’s right
to security of tenure." Workers are entitled to substantive and procedural due
process before termination. They may not be removed from employment without a
valid or just cause as determined by law and without going through the proper
procedure.

Luisa’s inefficiency in her work and duties may, therefore, constitute a just cause for
termination under Article 282(b), but only if petitioner was able to prove it.

The burden of proving that there is just cause for termination is on the
employer. "The employer must affirmatively show rationally adequate evidence that the
dismissal was for a justifiable cause." Failure to show that there was valid or just cause
for termination would necessarily mean that the dismissal was illegal.

To show that dismissal resulting from inefficiency in work is valid, it must be shown that:

1) the employer has set standards of conduct and workmanship against which the
employee will be judged;

2) the standards of conduct and workmanship must have been communicated to the
employee; and

3) the communication was made at a reasonable time prior to the employee’s

performance assessment.

A valid dismissal requires both a valid cause and adherence to the valid
procedure of dismissal. The employer is required to give the charged employee at
least two written notices before termination. One of the written notices must inform
the employee of the particular acts that may cause his or her dismissal. The other
notice must "[inform] the employee of the employer’s decision." Aside from the notice
requirement, the employee must also be given "an opportunity to be heard."

3. No, there is none. Lando being a minor cannot enter such relationship. Lando cannot
become an employee because he is not still at legal age, hence, no legal obligation
created between them which means no employee-employer relationship created.

4. No, the employer is not legally allowed to reduce the bonus. In this case, the
company has a long established practice of giving bonuses to their employees for 10
years. The law prohibits the diminution of benefits which the employer promised or
agreed to give without any conditions imposed for its payment, such as success of
business or greater production or output, then it is deemed part of the wage.

5. Yes, because the food and lodging provided by the company to their employees are
considered facilities, which are items of expense necessary for the laborer’s and
his family’s existence and subsistence. By express provision of law, facilities form
part of the wage and when furnished by the employer are deductible therefrom.

6. The minimum wage prescribes by law for a person with disability is the same as a
qualified able-bodied person.

7. Resignation is defined as the voluntary act of an employee who finds himself in a

situation where he believes that personal reasons cannot be sacrificed in favor of the
exigency of the service and he has no other choice but to disassociate himself from his
employment. Jurisprudence states that there is no provision in the Labor Code
which grants separation pay to voluntarily resigning employees. In fact, the rule
is that an employee who voluntarily resigns from employment is not entitled to
separation pay, except when it is stipulated in the employment contract or CBA, or it is
sanctioned by established employer practice or policy.

Hector should not resign.

8. Job contracting, legitimate job contracting or subcontracting refers to an arrangement

whereby a principal agrees to put out or farm out with the contractor or subcontractor
the performance or completion of a specific job, work, or service within a definite or
predetermined period, regardless of whether such job, work, or service is to be
performed or completed within or outside the premises of the principal.

A person is considered engaged in legitimate job contracting or subcontracting if the

following conditions concur:

1. the contractor carries on a distinct and independent business and partakes the
contract work on his account under his own responsibility according to his own
manner and method, free from the control and direction of his employer or
principal in all matters connected with the performance of his work except as to its
result;

2. the contractor has substantial capital or investment; and

3. the agreement between the principal and the contractor or subcontractor assures
the contractual employees’ entitlement to all labor and occupational safety and
health standards, free exercise of the right to self-organization, security of tenure,
and social welfare benefits.
Labor-only contracting, on the other hand, is defined under Article 106 of the Labor
Code. It refers to an arrangement where the contractor, who does not have substantial
capital or investment in the form of tools, equipment, machineries, work premises,
among others, supplies workers to an employer and the workers recruited are
performing activities which are directly related to the principal business of such
employer.

Permissible job contracting or subcontracting refers to an arrangement whereby a

principal agrees to put out or farm out to a contractor or subcontractor the performance
or completion of a specific job, work or service within a definite or predetermined period,
regardless of whether such job, work or service is to be performed or completed within
or outside the premises of the principal, while labor-only contracting, on the other
hand, pertains to an arrangement where the contractor or subcontractor merely recruits,
supplies or places workers to perform a job, work or service for a principal.

Job contracting is valid and recognized by law while Labor-only contracting is a

prohibited act.

9. Yes. Denise is entitled to such benefits and privilege because he is an employee to

Cabrera Transport Inc.

10. No. Jurisprudence rules that one element without the other does not amount to
labor-only contracting. Substantial capital need not be coupled with investment in tools
or equipment. XYZ in this case, is not a labor-only contracting although without
investment in tools, equipment, etc.

11. False. "Employment is not merely a contractual relationship; it has assumed the
nature of property right. It may spell the difference whether or not a family will have
food on their table, roof over their heads and education for their children. It is for this
reason that the State has taken up measures to protect employees from unjustified
dismissals. It is also because of this that the right to security of tenure is not only a
statutory right but, more so, a constitutional right." (Gonzales v. NLRC GR 125735)

12. Yes.

13.

14.

15.

16.

17.

18.

19. Wage is the effect of increasing the pay of an employee to such an amount that
equals, almost equals, or overtakes another employee's pay which has not been
similarly increased. The law provides that wage distortions shall be resolved through
grievance procedure under their collective bargaining agreement and, if it remains
unresolved, through voluntary arbitration.

20. It depends. If the seafarer is an Overseas Seafarer, they cannot become regular
employees because they are contractual employees which means their employment
terminates when contract expires. If the seafarer is a Domestic seafarer, they can
become regular employees because they are not necessarily have contractual or fixed
period employees.