PHILIPPINE LABOR RELATIONS LAW:

GUIDE QUESTIONS/REVIEW GUIDE

FOR SELF-ORGANIZATION, BARGAINING UNIT &
BARGAINING AGENT
BASIC CONCEPTS
a. Identify similar Art. 3 of the Labor Code:
provisions in the Art. 3. Declaration of basic policy. The State shall afford protection to
Constitution and labor, promote full employment, ensure equal work opportunities
the Labor Code. regardless of sex, race or creed and regulate the relations between
workers and employers. The State shall assure the rights of workers to
self-organization, collective bargaining, security of tenure, and just and
humane conditions of work.

Art. 218(211) of the Labor Code

Declaration of Policy.
A. It is the policy of the State:
a. To promote and emphasize the primacy of free collective
bargaining and negotiations, including voluntary
arbitration, mediation and conciliation, as modes of settling
labor or industrial disputes;
b. To promote free trade unionism as an instrument for the
enhancement of democracy and the promotion of social
justice and development;
c. To foster the free and voluntary organization of a strong
and united labor movement;
d. To promote the enlightenment of workers concerning their
rights and obligations as union members and as
employees;
e. To provide an adequate administrative machinery for the
expeditious settlement of labor or industrial disputes;
f. To ensure a stable but dynamic and just industrial peace;
and
g. To ensure the participation of workers in decision and
policy-making processes affecting their rights, duties and
welfare.

B. To encourage a truly democratic method of regulating the

relations between the employers and employees by means of
agreements freely entered into through collective bargaining, no
court or administrative agency or official shall have the power to
 set or fix wages, rates of pay, hours of work or other terms and
conditions of employment, except as otherwise provided under
this Code.

Both Articles 3 and 218 of the Labor Code are the letters that giveth life
to the protection-to-labor clauses in all the Constitution, most of note
worthy of which ore the following provisions in the Constitution:

Constitution
SECTION 18 Article II. The State affirms labor as a primary social
economic force. It shall protect the rights of workers and promote their
welfare.

SECTION 3 Article XIII. The State shall afford full protection to labor,
local and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective

bargaining and negotiations, and peaceful concerted activities, including
the right to strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living wage. They
shall also participate in policy and decision-making processes affecting
their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between

workers and employers and the preferential use of voluntary modes in
settling disputes, including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production
and the right of enterprises to reasonable returns on investments, and to
expansion and growth.

It is clear from the above-quoted provisions that, insofar as labor

relations are concerned, the following rights of workers are expressly
guaranteed under the Constitution:

1. Self-organization;
2. Collective bargaining and negotiations;
3. Strike and other peaceful concerted activities;
4. Security of tenure;
 5. Participation in policy and decision-making processes affecting
their rights, welfare and benefits; and
6. Preferential use of voluntary modes in settling disputes, including
conciliation and mediation.

Additionally, the following Constitutional Provisions have relevance to

Labor relations, to wit:

1. Formation of labor organizations (Right to self-organization):

SECTION 8 Article III. The right of the people, including those

employed in the public and private sectors, to form unions, associations,
or societies for purposes not contrary to law shall not be abridged.

Section 2 (3), (5) and (6) Article IX (B)

xxx
(3) No officer or employee of the civil service shall be removed or
suspended except for cause provided by law.
xxx
(5) The right to self-organization shall not be denied to government
employees.

(6) Temporary employees of the Government shall be given such

protection as may be provided by law.

2. Picketing (as distinguished form strike):

SECTION 4 Article III. No law shall be passed abridging the freedom

of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of
grievances.

3. CBA and employment contracts:

SECTION 10 Article III. No law impairing the obligation of contracts

shall be passed.

4. Speedy trial before tribunals:

 SECTION 16 Article IIO. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.

b. Distinguish Labor relations may be distinguished from labor standards in that the
labor relations latter is that part of labor law, which prescribes the minimum terms, and
from labor conditions of employment that the employer is required to grant to its
standards. employees.

Labor relations refers to that part of labor law which regulates the
relations between employers and workers. It dwells on the broad and
dynamic relationship between the employer and the employee, its
ramifications and implications insofar as their respective rights and
interests are concerned as well as the modes of settling and adjusting
their differences and disputes.

Labor relations and labor standards laws are not mutually exclusive.
They are complementary to and closely interlinked with each other.

II. Self-Organization
Self-organization is a fundamental right guaranteed by the Philippine
Constitution. It is expressly stated therein as a avowed policy that “The
State affirms labor as a primary social economic force. It shall protect
the rights of workers and promote their welfare.” From this fundamental
protection-to-labor principle springs the mandate that the state should
guarantee (1) “the rights of all workers to self-organization, collective
bargaining and negotiations” and (2) the right of the people, including
those employed in the public and private sectors, to form unions,
a. Explain the
associations, or societies for purposes not contrary to law, shall not be
concept of self-
abridged.”
organization.
It is the right of workers and employees to form, join or assist unions,
organizations or associations for purposes of collective bargaining and
negotiation and for mutual aid and protection. It also refers to the right
to engage in peaceful concerted activities or to participate in policy and
decision-making processes affecting their rights and benefits.
 The right to self-organization includes joining, forming and assisting in
the formation of a labor union. In Knitjoy Manufacturing v. Ferrer-
Calleja, the Court explained that self-organization encompasses two
broad notions: (1) liberty or freedom from restraint and (2) the power to
join or to refrain from joining an association.

However, not all employees may exercise the right to self-organization.

The Labor Code expressly prohibits managers from enjoying the right,
while confidential employees are precluded by jurisprudence under the
doctrine of necessary implication.

Supervisors, although allowed to form their own organizations, cannot

join the organization for rank and file employees. Workers without
definite employers may form worker associations for their mutual aid
and protection. Alien workers cannot enjoy the right unless their country
accords a similar right to their Filipino counterparts. Members of
cooperatives are also precluded from joining labor unions.

Government workers although accorded the right to self-organization

may exercise the same “for purposes not contrary to law.”

(a) employees in the private sector v. employees in the public sector;

b. Discuss the Art. 253. Coverage and employees’ right to self-organization. All
extent of the right to persons employed in commercial, industrial and agricultural enterprises
self-organization to and in religious, charitable, medical, or educational institutions, whether
the following operating for profit or not, shall have the right to self-organization and
employees: (a) to form, join, or assist labor organizations of their own choosing for
employees in the purposes of collective bargaining. Ambulant, intermittent and itinerant
private sector v. workers, self-employed people, rural workers and those without any
employees in the definite employers may form labor organizations for their mutual aid
public sector; (b) and protection.
rank and file
employees; (b) Art. 254. Right of employees in the public service. Employees of
supervisors; (c) government corporations established under the Corporation Code shall
managers; (d) have the right to organize and to bargain collectively with their
confidential respective employers. All other employees in the civil service shall have
employees; (e) the right to form associations for purposes not contrary to law.
foreigners
Sec. 2 (5) of Art. IX (B) Constitution. The right to self-organization shall
not be denied to government employees.
As a General Rule: All government employees can form join or assist
employees organizations of their own choosing for the furtherance and
protection of their interests. They can also form labor-management
committees, work councils and other forms of workers’ participation
schemes to achieve the same objectives. (EO No. 180, Sec. 1)

Exceptions:
1. High-level employees whose functions are normally considered
as policy-making or managerial or whose duties are of a highly
confidential nature. (EO No. 180 Sec. 3)
2. Members of the Armed Forces of the Philippines, including police
officers, policemen, firemen and jail guards. (EO no. 180, Sec. 4)

Note: Employees of government corporations incorporated under the

Corporation code and registered with SEC are governed by the Labor
Code and not by EO 180.

(b) rank and file employees;

There is no prohibition in the law or in the implementing rules regarding

the right of ran and file employees to organize a labor organization or
workers’ association of their own.

(b) supervisors;

There is no prohibition in the law or in the implementing rules regarding

the right of supervisory employees to organize a labor organization or
workers’ association of their own. They are, however, not allowed to
become member of a labor union composed of rank-and-file employees.
(Art. 255 LC)

(c) managers;

As far as managerial employees are concerned, they are absolutely

prohibited from forming, joining or assisting any labor union for
purposes of collective bargaining. (Art. 255 LC)

(d) confidential employees;

Within the context of labor relations, confidential employees are those

who meet the following criteria:
 1. They assist or act in confidential capacity;
2. To persons or officers who formulate, determine, and effectuate
management policies specifically in the field of labor relations.

Confidential employee may be rank-and- file or supervisory employee

but because in the normal course of his duties, he becomes aware of
management policies relating to labor relations, he is not allowed to
assist, form or join rank-and-file union or supervisory union, as the
case may be.

Note: Jurisprudence has established that there is no legal prohibition

against confidential employees who are not performing managerial
functions to form and join a union.

(e) foreigners

Aliens working in the country with valid permits issued by DOLE may
exercise the right to self-organization and join or assist labor
organizations of their own choosing for the purposes of collective
bargaining; provided that said aliens are nationals of country which
grants the same or similar rights to Filipino workers.

c. May While the employees in civil service as well as those employed in the
government GOCCs with original charters, are expressly granted the right to self-
employees enjoy the organization, they are not bestowed the right to strike. They are
right to organize and absolutely prohibited from engaging in this kind of concerted activity
join concerted mass for the purpose of changing the terms and conditions of their
actions without employment. (Sec. 14 EO 180)
incurring
administrative
liability?
Not sure:
d. If an employee
is designated as a
No. ART. 255. [245] Managerial employees are not eligible to join,
manager, will that
assist or form any labor organization.
employee be
automatically
Managers constitute three levels, the top management, middle
prevented from
management and first-line management (Supervisors). No absolute
joining a labor
constitutional right to organize for labor purposes should be deed to have
union?
been granted to top and middle managers. As to them, the right to self
 organization may be regulated and even abridged conformably to the
1987 Constitution.

The designation of manager may fall under the first-line manager which
is the lowest level of manager in an organization. They are direct
operating employees only and they do not supervise other managers.
Hence, the designation will not automatically prevent them from joining
labor a labor union.

Not sure:

No. A confidential employee that is not allowed to join labor unions are
e. Is a
those employees that assist or act in a confidential capacity and those
confidential
who formulate, determine, and effectuate management policies
employee who is
specifically in the field of labor relations.
prevented from
joining labor unions,
However, for the basis of termination, a confidential employee is an
the same
employee holding a position of trust and confidence, which is broader
confidential
than that of, mentioned above. In the case of Coca-Cola bottlers vs
employees who may
NLRC, generally employers are allowed a wider latitude of discretion
be terminated based
in terminating the employment of managerial personnel or those who,
on loss of trust and
while not of similar rank, perform functions which by their nature
confidence?
require the employer’s full trust and confidence. This means that

Members of a cooperative have no right to form or join labor

organizations for purposes of collective bargaining for being themselves
co-owners of the cooperative. (Jurisprudence)
f. May a
member of a This prohibition covers employees of the cooperative who are at the
cooperative join a same time members thereof.
labor union?
Note: An employee of a cooperative who is not a member thereof can
join a union and collectively bargain with the cooperative. They are not
co-owners.
Yes. Any employee, whether employed for a definite period or not,
g. May shall, beginning on the first day of his service, be eligible for
probationary membership in any labor organizations. (Article 292 (c)) This holds true
employees join labor irrespective of whether his employment is regular in nature or for a
unions? definite period.
 Definite-period employees like probationary, casual, seasonal, fixed-
term and similar employees are entitled to become a full-pledged
member of a union from day one of their employment as such, with
concomitant right to vote in election of officers and board members of
the same union.
ART. 256. [245-A] Effect of Inclusion as Members of Employees
Outside the Bargaining Unit. The inclusion as union members of
employees outside the bargaining unit shall not be a ground for the
cancellation of the registration of the union. Said employees are
h. What is/are the automatically deemed removed from the list of membership of said
effect/s of union.
commingling in a
labor union? Commingling of supervisory employees and rank-and-file employees in
one and the same labor organization does not affect its legitimacy and
its right to file a petition for certification election.

III. Bargaining Unit

"Bargaining Unit" refers to a group of employees sharing mutual
interests within a given employer unit, comprised of all or less than all
of the entire body of employees in the employer unit or any specific
occupational or geographical grouping within such employer unit.

Bargaining unit must involve a grouping of employees who have

substantial, mutual interests in wages, hours of work, working
a. Differentiate a
conditions and other subjects of collective bargaining.
bargaining unit from
a bargaining
Bargaining representative” means a legitimate labor organization
representative.
whether or not employed by the employer.

"Exclusive Bargaining Representative" refers to a legitimate labor union

duly recognized or certified as the sole and exclusive bargaining
representative or agent of all the employees in a bargaining unit.

b. Identify the The purpose of determining a bargaining unit is to ensure all employees
different modes in their collective bargaining rights based on substantial mutual interests
and explain the in the terms and conditions of their employment.
purpose of
determining a Four factors in determining the appropriate Bargaining Unit:
bargaining unit
 3. Community of Interest Doctrine or Substantial Mutual Interest
Rule –
Affinity and unity of employees’ interest, such as substantial similarity
of work and duties, or similarity of compensation and working
conditions.

The following are the factors that may be considered:

• Similarity in the scale and manner of determining earnings;
• Similarity in the employment benefits, hours of work and other
terms and conditions of employment;
• Similarity in the kinds of work performed;
• Similarity in the qualifications, skills and training of the
employees;
• Geographic proximity;
• Continuity or integration of production processes;
• Common supervision and determination of labor-relation policy;
• History of collective bargaining;
• Desires of the affected employees; or
• Extent of union organization

Preference given in the application of the Community of Interest

Doctrine in determining the appropriate bargaining unit.

4. Globe Doctrine-
Based on the express will or desire of the employees.
In defining appropriate bargaining unit for purposes of collective
bargaining, the determining factor is the desire of the workers
themselves.

5. Employment status, (Temporary, Seasonal and Probationary)

For instance, casual employees and those employed on a day-to-day
basis do nnot have the mutuality or community of interest with regular
and permanent employees. Hence, their inclusion in the bargaining unit
composed of the latter is not justified.

6. Prior collective bargaining history

The existence of a prior collective bargaining history is neither decisive
nor conclusive in the determination of what constitutes an appropriate
bargaining unit.
c. May an Yes. Depending on the number group of employees sharing mutual
establishment have interests.
different bargaining
units?
d. May an No. Several labor unions may validly seek registration of their
establishment have respective organization to represent one bargaining unit but there should
one bargaining unit only be one labor organization that should represent the bargaining unit.
belonging to This labor organization is known as SEBA – chosen and elected as such
different labor through a process called certification election or any of its variations.
unions?
No. Corollary to the right to join is the prerogative not to join, affiliate
with or assist a labor union. An employee has the right to join or not to
e. May join a labor union. A member of a labor union may leave and cancel his
employees be membership any time. An employee who joins a union does not make
compelled to join a any commitment or assume any undertaking to continue his membership
labor union? therein for a fixed period of time, much less indefinitely. In this regard,
he is a free agent.

f. Rights and
conditions to
membership of a
labor union
The right to vote and be voted for subject to lawful provisions on
i. Political rights qualifications and disqualifications.

Art 250 mentions no specific qualification for candidacy to any position

(either by election or appointment) other than the requirement that the
candidate should be a member in good standing in the labor
organization. However, it is important to stress that no person who is not
an employee or worker of a company or establishment where a labor
1. Qualification/s organization operates, shall be elected or appointed as an officer thereof.
and
The following are the disqualifications:
disqualification/s to
• Conviction of a crime involving moral turpitude; and
membership and
running for office • Membership in a subversive organization or engaging, directly or
indirectly in any subversive activity. This disqualification applies
not only with respect to being elected or appointed to a position
in the union but extends to membership therein.

2. How are union Manner of election of officers

officers voted upon
and It is required that the members of a labor organization should directly
impeached/expelled elect their officers, including those of the national union or federation,
? trade union center or any similar aggrupation to which their union is
affiliated, by secret ballot at intervals of 5 years. It is legally tenable for
the labor organization to prescribe reasonable rules and regulations in
regard to the issue of voting eligibility and manner of conducting
election.

a. The election should be held in accordance with the

procedure laid down in the union’s constitution and by-
laws
b. In the absence of any agreement among members or any
provision in the constitution and by-laws a labor union or
worker’s association, the guidelines in Section 1, Rule XII,
Book V of the Rules to Implement the Labor Code may be
adopted.

Impeachment or expulsion of union officers or members

The power of a voluntary association to discipline its members is not

found in the general law of the land but upon the agreement of the
members are expressed in its constitution and by-laws, to which every
member joining the association is deemed to assent.

Fixed period of five (5) years during which the duly elected officers of
a labor organization discharge the functions of their office, unless a
shorter period is stipulated in the organization’s constitution and by-
3. Term of office
laws.

ii. Fiscal rights

All unions are authorized to collect reasonable membership fees, union
dues, assessments and fines and other contributions for labor education
research, mutual death and hospitalization benefits, welfare fund, strike
1. Valid fund and credit and cooperative undertakings.
assessments and
check-off Requirements for levy of special assessments or extraordinary fees:
1. There must be a written resolution;
2. The resolution must have been approved by a majority off all the
members;
 3. The approval must be at a general membership meeting duly
called for the purpose; and
4. The secretary of the organization shall record the minutes of the
meeting, which shall be attested by the president. The minutes
include:
a. The list of all members present;
b. The votes cast; and
c. The purpose of the assessment or fees.

General Rule:
No special assessment, attorney’s fees, registration fees or any other
extraordinary fees may be check off from any amount due to an
employee without an individual written authorization duly signed by the
employee. The authorization should specifically state the amount,
purpose and beneficiary of the deduction.

Exceptions:
• For mandatory activities provided under the Code;
• Check-off for union service fees authorized by law;
• When non-members of the union avail the benefits of the CBA:
o The said non-members may be assessed union dues
equivalent to that paid by members; and
o Only by a board resolution approved by majority of the
members in a general meeting called for the purpose; and
• Check-off for union service fees authorized by law.

Check-off means a method of deducting by the employer from the

employee’s pay at prescribed periods, any amount due for fees, fines or
assessments.
2. Check-off v.
agency fees Agency fees are dues equivalent to union dues charged from the non-
union members who are benefited by or under the CBA.

No provision of law makes the employer directly liable for the payment
to the SEVA of union dues and assessments that the former fails to
3. Liability of deduct from its employees’ salaries and wages pursuant to a check-off
employer in case of stipulation. The employer’s failure to make the requisite deductions may
failure to collect constitute a violation of a contractual commitment for which it may
incur liability for ULP. However, it does not, by that omission, incur
liability to the SEBA for the aggregate of dues or assessments
 uncollected from the union members, or agency fees for non-union
employees.

Art. 259 (e) of the Labor Code. Xxx Employees of an appropriate

bargaining unit who are not members of the recognized collective
bargaining agent may be assessed a reasonable fee equivalent to the dues
4. Union
and other fees paid by members of the recognized collective bargaining
members v. non-
agent, if such non-union members accept the benefits under the
union members
collective bargaining agreement: Provided, That the individual
belonging to the
authorization required under Article 250, paragraph (o) of this Code
same bargaining unit
shall not apply to the non-members of the recognized collective
bargaining agent;

a. The secretary or any other responsible union officer shall furnish

the Secretary of Labor and Employment with a list of the newly-
elected officers, together with the appointive officers or agents
who are entrusted with the handling of funds within thirty (30)
calendar days after the election of officers or from the occurrence
of any change in the list of officers of the labor organization;
b. Submission of annual financial report to the DOLE;
c. Submission of duly audited and verified report of the union
treasurer and every officer thereof responsible for the account of
the labor organization or for the collection, management,
disbarment, custody or control of the funds, moneys and other
5. Submission of properties of the organization, or the moneys received and paid
fiscal reports by him, bonds, securities and other properties of the organization
entrusted to his custody or under his control.
d. Submission of mandatory report on foreign assistance such as
donations grants or other forms of assistance, in cash or kind,
directly or indirectly, to any labor organization, group of workers
or any auxiliary thereof, such as cooperatives, credit unions and
institutions engaged in research, education or communication, in
relation to trade union activities.
e. Submission by the union president, education director or any
officer responsible for labor education, of annual labor education
and research report.

6. Requirement/s Art. 250. At least 30% if the members of a union or any member or
and period to file members specially concerned may report any violation of the rights and
complaints
involving union conditions of membership provided therein, including issue of the
funds/disbursements proper handling and disposition of the funds and properties of the union.

No complaint or petition for the inquiry or examination of financial

records and books of accounts as well as records of any legitimate labor
organization should be entertained during the 60 day freedom period or
within 30 days immediately preceding the date of election of union
officers.

Prescription of actions involving union funds – prescribes within 3 years

form the date of submission of the annual financial report to DOLE or
from the date the same should have been submitted as required by law,
whichever comes earlier.

Right to information includes the following:

1. Right to require the treasurer and the other officers of the union
responsible for the account of the union as well as for the collection,
management, disbursement, custody or control of the funds, moneys
and other properties, to render a true and correct account thereof, at
least once a year within 30 days after the close of its fiscal year and
at such other times as may be required by a resolution of the majority
of the members of the union and upon vacating his office;
2. Right to require that the account be duly audited and verified by
iii.
affidavit and a copy thereof be furnished to the DOLE Secretary;
Right to
3. Right to inspect the books of accounts and other financial records
information
of the union and to require full and detailed reports from their
officers and representatives on all financial transactions as provided
for in the constitution and by-laws of the organization;
4. Right to be informed of the provisions of the constitution and by-
laws, CBA, the prevailing labor relations system and all their rights
and obligations under existing labor laws through the medium of
labor relations seminar or other labor education activities; and
5. Right to seek investigation of any irregularity.

Right to participate in decision-making process includes the following:

1. Right to vote by secret ballot on any question of major policy
iv.
affecting the entire membership of the organization; and
Right to participate
2. Right to initiate and participate in impeachment or expulsion
in decision-making
proceedings against an erring officer or member of the union.

I. Labor Union/Organization to Legitimate Labor Union/Organization

 The following are the different types of labor unions/organizations:
1. Federation is any labor organization with at least ten (10)
locals/chapters each of which must be a duly certified or recognized
collective bargaining agent;
2. National/Industry Union is a group of legitimate labor organizations
within an identified industry, organized for collective bargaining or for
dealing with employers concerning terms and conditions of employment
within an identified industry or for participating in the formulation of
social employment policies, standards, and programs in such industry
registered with DOLE.
3. Trade Union Center is any group of registered national unions or
a. Identify the federations organized for the mutual aid and protection of its members,
different types of for assisting such members in collective bargaining, or for participating
labor in the formulation of social and employment policies, standards and
unions/organization programs, and is duly registered with the DOLE.
s. 4. Independent union refers to a labor organization operating at the
enterprise level which acquired legal personality through independent
registration under the Labor Code and its Implementing rules.
5. Local Chapter refers to a labor organization in the private sector
operating at the enterprise level that acquired legal personality through
the issuance of a charter certificate by a duly registered federation or
national union, and reported to the Regional Office.
6. Workers Association is established by a group of workers who do not
have definite employers, organized for the mutual aid and protection of
its members or for any legitimate purpose other than collective
bargaining.

No. A worker association refers to an association of workers organized

for the mutal aid and protection of its members or for any legitimate
b. Is a labor union purpose other than collective bargaining. While a labor union is any
the same as a worker labor organization in the private sector organized for the collective
association? bargaining and for other legitimate purposes.

Independent Labor Union Local Charter.

c. Distinguish
Treated under Art 240. Covered by Art. 241
the procedure for
registering an
independent labor
Creation of an independent union Establishing a union through charter
union from a local
through independent registration is the does not require compliance with
charter.
more difficult mode since this requires same documentary requireme
 compliance by the union of the applicable to independently-registe
requirements enumerated in Art. 240 unions nor is it necessary to undergo
and the submission thereof to the DOLE tedious process of submitting them
regional office for registration purposes. the DOLE Regional Office and await
It is only upon the issuance of a the subsequent issuance of a certific
Certificate of Registration to the union of Registration by the said agency,
that it acquires legal personality.
Chartering simply requires the issuan
by a federation or national union o
charter certificate to the union wh
upon such issuance, automatica
becomes a local chapter/chartered lo
of the federation or national union w
accompanying grant of limited le
personality to file a petition
certification election in order to
certified as SEBA. It subsequen
acquires full legal persona
automatically upon the submission
the documents mentioned in Art. 2
without the need to wait for the issuan
of a Certificate of Registration by
DOLE Regional Office.
(a) The nature of the relationship between the union and its members
is fiduciary in nature, which arises from the dependence of the
employee on the union, and from the comprehensive power
vested in the union with respect to the individual. The union may
be considered but the agent of its members for the purpose of
d. Identify the
securing for them fair and just wages and good working
nature of
conditions.
relationship
between: (a)
(b) The local chapter may be considered as the agent of its members
member and labor
for the purpose of fair and just wages and good working
union; (b) member
conditions and is subject to the obligation of giving the members
and local chapter; (c)
as its principals all information relevant to union and matters
local chapter and
entrusted to it. The relationship of the members and the local
mother union
chapter is governed by their mutual agreement, the terms and
conditions of which are set forth in the union constitution and by-
laws and binding on the members, as well as the organization
itself. provided that it is not against the law, morals, good
customs, public order and public policy.
 (c) The mother union, acting for and on behalf of its affiliate union,
has the status of an agent while the affiliate union remains the
principal. The basic unit of the association is free to serve the
common interest of all its members, subject only to the restraints
imposed by the Constitution and By-Laws of the association.

Under the law and pertinent jurisprudence, the following are the rights
of a legitimate labor union, to wit:
1. To act as a representative of its members for the purpose of collective
bargaining;
2. To be furnished by the employer of its annual audited financial
statements upon its written request;
3. To own a property, whether personal or real, for the use and benefit
e. What are the
of the legitimate labor organization and its members;
rights of a legitimate
4. To be certified as the exclusive representative of all the employees in
labor union
an appropriate bargaining unit for the purpose of collective bargaining;
5. To undertake all other activities designed for the benefit of the
organization and its members;
6. To sue and be sued in its registered name; and
7. To be free from taxes, duties and other assessments as to its income
and properties.

Yes, a local chapter may disaffiliate from a mother union. If the local
chapter disaffiliates from its mother union without prior independent
f. May a local
registration, it loses its legal personality. However, if it sought prior
chapter disaffiliate
independent registration, it shall continue its legal personality
from a mother
notwithstanding its disaffiliation from its mother union.
union?

On the effect of disaffiliation on the Collective Bargaining Agreement

(CBA). According to the Supreme Court., disaffiliation does not disturb
the enforceability and administration of an existing CBA; it does no
g. What will be
occasion a change of administration of the contract nor even an
the effect of
amendment of the provisions thereof. The CBA continues to bind the
disaffiliation?
members of the new or disaffiliated and independent union up to the
CBA’s expiration date.

h. What are the Under the law, the following are the grounds for cancelling union’s
grounds for registration:
canceling a union’s 1. Misrepresentation, false statement or fraud in connection with the
registration? adoption or ratification of the constitution and by-laws or amendments
thereto, the minutes of ratification and the list of members who
participated therein;
2. Misrepresentation, false statement or fraud in connection with the
election of officers, and the list of voters; and
3. Voluntary dissolution by the members.

As a general rule, commingling may not be raised as a ground to cancel

i. May
a union’s registration. The effect would only be an automatic removal
commingling be
of the employees improperly included from the list of members by
raised as a ground to
operation of law. However, jurisprudence dictates that if there is
cancel a union’s
misrepresentation, false statement or fraud, the same can be raised as a
registration?
ground to cancel a union’s registration.
A direct attack is an attempt to annul, reverse or declare void a judgment
or an order in a proceeding instituted for the specific purpose. On the
j. Explain the
other hand, a collateral attack is when the purpose of the proceedings is
concept of a Direct
to obtain some relief, other than the vacation or setting aside of the
v. collateral attack
judgment, and the attack is only an incident.

Under the law, the equity of incumbent rule provides that all the existing
federations and national unions which meet the qualifications of a
k. Explain the
legitimate labor organization and none of the grounds for cancellation
equity of the
shall continue to maintain their existing affiliates regardless of the nature
incumbent rule.
of the industry and the location of the affiliates.

l. Is there a There is no difference between a bargaining representative and a

difference between a bargaining agent. Both concepts refer to a legitimate labor union duly
bargaining recognized or certified as the sole and exclusive bargaining
representative and a representative or agent of all the employees in a bargaining unit.
bargaining agent?
May an individual Yes. Individual may be selected as bargaining agent. There is no
be selected as a prohibition in the law that an individual may not be selected as a
bargaining agent? bargaining agent. (Labor Code)
7. Request for SEBA Certification
m. Distinguish the
different modes in
The request will only be granted if what is involved is and unorganized
selecting a
establishment with only one legitimate union. It will not be granted and
bargaining
instead a certification election will be conducted in case the request is
representative.
made in:
 • An unorganized establishment with more than one legitimate
labor organization and
• An organized establishment with an existing SEBA.
This is as it should be because with multiple unions present in the CBU,
the SEBA cannot be designated on the basis of a mere request by one of
them but only through the democratic process of certification election
involving all of them.

PROCEDURE [RULE VII, BOOK V, IRR]

1. File Request of SEBA Certification (Sec. 1)
Who: Any legitimate labor organization
File where: Regional Office which issued its certificate of registration
or certificate of creation of chartered local

2. Indicate in the request (Sec. 2):

a. Name and address of the requesting legitimate labor organization;
b. Name and address of the company where it operates;
c. Bargaining unit sought to be represented;
d. Approximate number of employees in the bargaining unit; and
e. Statement of the existence/non-existence of other labor
organization/CBA.
Certificate of Duly Certified by
Registration President of requesting union
Creation of chartered local President of the federation of the loc
If the Regional Director finds it deficient, he/she shall advise the
requesting union or local to comply within ten (10) days from notice.
Failure to comply within the prescribed period shall be deemed
withdrawal of the request.

If Unorganized Establishment (Sec. 4)

a. Finding of only 1 legitimate labor organization – Regional Director
shall call a conference within five (5) working days for the
SUBMISSION of:

o i. Names of employees in the covered bargaining unit who

signify support for certification; [and these] employees
comprise at least majority of the number of employees in
the covered bargaining unit; and
 o ii. Certification under oath by the president of the
requesting union or local that all documents submitted are
true and correct based on personal knowledge

b. Failure to Complete Requirements for SEBA Certification - the

request for SEBA certification shall be referred to the election officer
for the conduct of election pursuant to Rule IX of this rules.

Note: If there is more than one Legitimate Labor Organization, Art. 269
applies

If Organized Establishment (Sec. 6)

If the Regional Director finds the establishment organized he/she shall
refer it to the mediator-arbitrator for determination and propriety of
conducting a certification election.

4. Regional Director shall act on the submission (Sec. 4.1)

Incomplete The request shall be referred to Election Officer for the
requirements conduct of election pursuant to Rule IX.
Complete Regional Director shall issue a certification as SEBA
requirements

5. Regional Director shall post the SEBA Certification (Sec. 4.1)

Period: Fifteen (15) consecutive days
Where: At least two (2) conspicuous places in the establishment or
covered bargaining unit.

8. Certification Election.

The process of determining, through secret ballot, the sole and exclusive
representative of the employees in an appropriate bargaining unit for
purposes of collective bargaining or negotiation. [Sec. 1(i), Rule I, Book
V, IRR]
A certification election may be classified as follows:

1. Single-union election (when there is only one union in

contention).
This refers to the situation where only one legitimate labor
organization files petition for certification election (PCE) to be
certified as SEBA in the appropriate CBU where it seeks to
 operate and which it desires to represent. Its opponent is the “no
union” vote, a choice which is always available in all electoral
exercises, except in run-off election.

2. Multi union election (when there are two or more unions in

contention)
This may result in and give rise to the other kinds of election,
namely:

o Consent election – meeans the election voluntarily agreed

upon by the parties with or without the intervention by
DOLE [Sec. 1(i), Rule I, Book V, IRR]
3.
Procedure [Sec. 11, Rule VIII, Book V, IRR]
1. The parties may agree to hold a consent election
a. Where no petition for certification election was filed; or
b. Where a petition for certification election had been filed, and upon
the intercession of Med-Arbiter [Sec. 25, Rule VIII, Book V, IRR]
2. Mediator-Arbiter shall call for the consent election, reflecting the
parties’ agreement and the call in the minutes of the conference.
Regional Director or authorized representative shall determine the
Election Officer by raffle in the presence of representatives of the
contending unions if they so desire
3. First pre-election conference is scheduled within ten (10) days from
the date of the agreement. Subsequent conferences may be called to
expedite and facilitate the holding of the consent election.

o Run-off election refers to an election between the labor

unions receiving the two (2) highest number of votes in a
certification or consent election when the following
requisites have been complied with:
1. Valid election;
2. The certification or consent election provides for three
(3) or more choices (“No Union” is considered one choice
– Professor Battad);
3. None of the contending UNIONS received a majority of
the VALID VOTES cast;
4. No objections or challenges which if sustained can
materially alter the results; and
5. The total number of votes for all contending UNIONS is
at least fifty (50%) of the number of VOTES cast [Art. 268;
 Sec. 1(uu), Rule I, Book V, IRR; Sec. 1, Rule X, Book V,
IRR]

Procedure for Run-Off Election

Election Officer shall motu proprio conduct a run-off election within ten
(10) days from the close of the election proceedings between the labor
unions receiving the two highest number of votes.

“No Union” shall not be a choice in the run-off election [Sec. 1, Rule X,
Book V, IRR].

Same voters’ list used in the certification election shall be used in the
run-off election.

The labor union receiving the GREATER number of VALID VOTES

cast shall be certified as the winner [Sec. 2, Rule X, Book V, IRR].

o Re-run election refers to an election conducted to break a

tie between contending unions, including between "no
union" and one of the unions. It shall likewise refer to an
election conducted after a failure of election has been
declared by the election officer and/or affirmed by the
mediator-arbiter. [Sec. 1(tt), Rule 1, Book V, as amended
by DO 40-I-15]
When will re-run be conducted
Within ten (10) days after the posting of the notice of
declared as winner and certified choice receiving the
HIGHEST VOTES CAST.
General Rule: a PCE may be filed at any time.

Except: When it is barred under any of the following bar rules:

1. Contract bar rule (Art 238)

n. When may a BLR shall not entertain any petition for certification election or any
certificate elections other action which may disturb the administration of DULY
be held? REGISTERED existing collective bargaining agreements affecting the
parties. except under Arts. 264, 265, and 268 [(60-day freedom period)].
[Art. 238]
No petition for certification election may be filed when a [CBA]
between the employer and a SEBA has been registered in accordance
with Art. 237. Where such [CBA] is registered, the petition may be filed
 only within sixty (60) days prior to its expiry. [Sec. 3(d), Rule VIII,
Book V, IRR].

2. Statutory bar rule – the filing of a PCE within a period of one

year from the date of a valid conduct of certification, consent, run-
off or rerun election where no appeal on the results thereof was
made. (see Sec. 3 (a), Rule VII, Book V of Rules to implement
the Labor Code)

3. Certification year bar rule

No certification election may be held within 1 year from the time a valid
certification, consent or run-off election has been conducted within the
bargaining unit. [If the order of the Med-Arbiter certifying the results
of the election has been appealed], the running of the one-year period
shall be suspended until the decision on the appeal becomes final and
executory. [Sec. 3(a), Rule VIII, Book V

Note: This bar also applies to a SEBA Certification under Rule VII.
“The certification shall bar the filing of a petition for certification
election by any labor organization for a period of one (1) year from the
date of its issuance.” [Sec. 4.2, Rule VII, Book V, IRR]

4. Negotiations bar rule

No certification of election may be filed when:
o Within 1 year after the valid certification election
o The DULY CERTIFIED union has COMMENCED AND
SUSTAINED negotiations in good faith with the employer
o In accordance with Art. 261 of the Labor Code Sec. 3(b),
Rule VIII, Book V

5. Bargaining deadlock bar rule.

No certification of election may be filed when:
o The incumbent or certified bargaining agent is a party;
o A bargaining deadlock had been:
▪ Submitted to conciliation or arbitration or;
▪ Had become the subject of a valid notice of strike or
lockout [Sec. 3(c), Rule VIII, Book V, IRR]

o. Is there a Certification Election v. Certification Election Consent Election

difference between a Consent Election
certificate election Purpose "Certification Election" or "Consent Election" refe
and a consent the process of determining through secret ballot
election? sole and exclusive representative of the employee
an appropriate bargaining unit for purposes
collective bargaining or negotiation. A certifica
election is ordered by the Department, while a con
election is voluntarily agreed upon by the parties,
or without the intervention by the Department [B
V, Rule 1, Sec. 1(h)].
General Procedure Rule IX Rule VII, Sec. 11, par
2
SECTION 2. Raffle of the
Case. — Within twenty- The contending un
four (24) hours from may agree to the hol
receipt of the notice of of an election, in w
entry of final judgment case it shall be calle
granting the conduct of a consent election.
certification election, the mediator-arbiter
Regional Director shall forthwith call for
cause the raffle of the case consent elec
to an Election Officer who reflecting the par
shall have control of the agreement and the ca
pre-election conference the minutes of
and election proceedings. conference
(1a)
The mediator-ar
shall, immedia
forward the records o
petition to the regi
director or his
authorized representa
for the determination
the election officer
shall be chosen by raff
the presence
representatives of
contending unions if
so desire.
 With the exception of aforementioned provisions
specifically apply only for Certification Electio
Consent Election respectively, Rule IX, on the Con
of Certification, Secs. 3 – 21, applies to
certification and consent elections
Conduct Ordered by the DOLE Voluntarily agreed u
by the parties, with
without the interventio
DOLE
Organized v. Art. 268: Organized Art. 269: Unorganize
Unorganized
Establishments
Sole and exclusive Existing None
bargaining agent
Petition filed Must be VERIFIED No need to be verified
Freedom Period No petition for Not applicable (i.e.
certification election freedom period; pet
EXCEPT within 60 days can be filed anytime)
p. Is there a before the expiration of
difference between the collective bargaining
an organized and agreement (See Arts. 264
unorganized and 265)
establishments in
Rationale: To keep
selecting a
bargaining agent? industrial peace in
organized establishments
Substantial support rule Must be duly supported by NO substantial sup
25% of ALL THE rule
MEMBERS OF THE
Rationale: Intention
APPROPRIATE
law is to bring in
BARGAINING UNIT
union, to implem
Rationale: Law wants to policy behind Art. 218
know the intention of the
employees – if they really
want a certification
 election, since they
already have a bargaining
agent

It will not be granted and instead a certification election will be

q. May an conducted in case the request is made in:
application for • An unorganized establishment with more than one legitimate
SEBA, seeking to labor organization and
represent the same • An organized establishment with an existing SEBA.
bargaining unit, be
filed in an organized The request will only be granted if what is involved is and unorganized
establishment? establishment with only one legitimate union.

It will not be granted and instead a certification election will be

conducted in case the request is made in:
r. May an
• An unorganized establishment with more than one legitimate
application for
labor organization and
SEBA in an
• An organized establishment with an existing SEBA.
organized
establishment be
The request will only be granted if what is involved is and unorganized
granted?
establishment with only one legitimate union.

s. What
constitutes as
prohibitions to the
conduct of each of
the modes in
selecting a
bargaining unit?
Bystander rule
In all cases, whether the petition for certification election is filed by an
t. Explain why
employer or a legitimate labor organization, the employer shall not be
the employer should
considered a party thereto with a concomitant right to oppose a petition
only be considered
for certification election. [Art. 271]
as a mere bystander
in the selection of a
The employer’s participation shall be limited to:
bargaining
a. being notified or informed of petitions of such nature
representative.
b. submitting the list of employees during the pre-election conference
should the Med-Arbiter act favorably on the petition [Art. 271]
 The principle of the employer as by-stander shall be strictly observed
throughout the conduct of certification election. The employer shall not
harass, intimidate, threat[en], or coerce employees before, during and
after elections. [Sec. 1, Rule IX, Book V, IRR]

The employer is not a party to a certification election, which is the sole

or exclusive concern of the workers. [...] The only instance when the
employer may be involved in that process is when it is obliged to file a
petition for certification election on its workers’ request to bargain
collectively pursuant to Art. 258 [now Art. 270].

No. The rules provided that any legitimate labor organization may file a
request in the DOLE regional Office which issued its certificate of
registration or certificate of creation of local chapter, as the case may be.

u. May an However, an employer (when requested to bargain collectively and no

employer file an existing CBA) may file for certification election.
application for
SEBA certification? Requisites:
a. Employer is requested to bargain collectively; AND
b. No existing registered CBA in the unit [Art. 270]

v. May selection
of a bargaining
representative be
subject to
mediation?
w. In an establishment, 400 out of the 500 members of a bargaining unit participated in the
certification election where Unions A and B vied to become a bargaining representative. The
results of the election are as follows:

Union A - 175
Union B - 165
No Union - 0
Segregated Ballots - 60 (10 cast by probationary employees; 20 by employees
terminated before the elections with pending cases for illegal
dismissal; 30 by employees with pending complaints before the
Labor Arbiter for non-payment of retirement benefits)
(a) Will there be a
designated
bargaining
representative if
all segregated
ballots will be
counted in favor of
Union B?

(b) Will your answer

be the same if the
same ballots will
all be in favor of
Union A?

(c) What will the

proper action of
the Election
Officer/Med-
Arbiter in the case
of (A) and (B)?

PHILIPPINE LABOR RELATIONS LAW:

STUDY GUIDE QUESTIONS FOR POST-EMPLOYMENT
7.1 RESIGNATION V. CONSTRUCTIVE DISMISSAL
a. Termination by the employee without just cause
i. How may an employee terminate her Article 300. Termination by Employee
employment if there he/she has no valid a. An employee may terminate
cause? without just cause the employer-
employee relationship by serving a
written notice on the employer at
least (1) month in advance. The
employer upon whom no such
notice was served may hold the
employee liable for damages.
 Voluntary Resignation (Termination by
Employee w/o just cause)
Per jurisprudence, “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 so much so that he
has no other choice but to disassociate himself
from his employment.

Resignation must show the concurrence of 2

things:
1. The intent to relinquish; and
2. The overt act of relinquishment

To constitute valid resignation, it must be

unconditional and with the intent to operate as
such.

Requisites of a valid voluntary resignation:

i. The resigning employee should submit
a written (not verbal) notice of
termination – resignation letter.
ii. Service of such notice to the employer
at least 1 month in advance; and
iii. WRITTEN ACCEPTANCE by the
employer of the resignation.
ii. May an employee unilaterally As a general rule NO.
withdraw/revoke a previously accepted
resignation? Why/Why not? Resigning employee may withdraw his
resignation any time before acceptance is made
by the employee. ONCE ACCEPTED,
HOWEVER, WITHDRAWAL THEREOF CAN
NO LONGER BE MADE BY THE RESIGNING
EMPLOYEE.

Except with the consent or agreement of the

employer.
 Written acceptance of resignation is necessary
to make it binding and effective. A duly
accepted resignation effectively terminates the
employer-employee relationship.

iii. What is constructive dismissal? Cite In the case of Girly G. Ico vs STI, G.R No.
instances of constructive dismissal. 185100, July 9, 2014, there is constructive
dismissal when any or all of following 3
circumstances exists:
1. When continued employment is rendered
impossible, unreasonable or unlikely;
2. When there is a demotion in rank and/or
a diminution in pay; or
3. When a clear discrimination, insensibility
or disdain by an employer becomes
unbearable to the employee that it could
foreclose any choice by him except to
forego his continued employment.

The employer has to prove that such managerial

actions do not constitute constructive dismissal.

The test to determine whether a reasonable

person in the employee’s position would have
felt compelled to give up his position under the
circumstances. It is an act amounting to
dismissal but made to appear as if it were not. In
fact, the employee who is constructively
dismissed may be allowed to keep on coming to
work. Constructive dismissal is therefore a
dismissal in disguise.
iv. Distinguish resignation from “Resignation is the formal pronouncement or
constructive dismissal? relinquishment of a position or office. It is the
voluntary act of an employee who is in a
situation where he believes that personal reasons
cannot be sacrificed in favor of the exigency of
the service, and he has then no other choice but
to disassociate himself from employment. The
intent to relinquish must concur with the overt
act of relinquishment; hence, the acts of the

v. What is the liability of the employer in An employee who was illegally transferred
case of constructive dismissal?
employee before and after the alleged
resignation must be considered in determining
whether he in fact intended to terminate his
employment. In illegal dismissal cases, it is a
fundamental rule that when an employer
interposes the defense of resignation, on him
necessarily rests the burden to prove that the
employee indeed voluntarily resigned.
“In contrast, constructive dismissal exists
where there is cessation of work because
continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a
demotion in rank or a diminution in pay and
other benefits. Aptly called a dismissal in
disguise or an act amounting to dismissal but
made to appear as if it were not, constructive
dismissal may, likewise, exist if an act of clear
discrimination, insensibility or disdain by an
employer becomes so unbearable on the part of
the employee that it could foreclose any choice
by him except to forego his continued
employment. It must be noted, however, that
bare allegations of constructive dismissal, when
uncorroborated by the evidence on record,
cannot be given credence.”
(constructively dismissed) is entitled to
damages. Under Article 21 of the Civil Code,
any person who willfully causes loss or injury to
another in a manner that is contrary to morals,
good customs or public policy shall compensate
the latter for the damage. The illegal transfer of
an employee to a functionless office is clearly an
abuse on the part of the employer of its right to
control the structure of its organization. (De la
Salle University vs. De la Salle University
Employees Association, 330 SCRA 363 [2000]).
 Under Article 294 of the Labor Code, an
illegally dismissed employee is entitled to the
following reliefs:
1. Reinstatement without loss of seniority
rights and other privileges;
2. Full back wages, inclusive of allowances;
and
3. Other benefits or their monetary
equivalent.

Other Reliefs not found in Article 294:

1. Separation pay in lieu of reinstatement.
2. Indemnity in the form of nominal
damages in case of termination due to just
or authorized cause but without affording
the employee procedural due process.
3. Reliefs to an illegally dismissed
employee whose employment is for a
fixed period consisting of the payment to
him/her of his/her salaries corresponding
to the unexpired portion of the
employment contract.
4. Moral and exemplary damages and
attorney’s fees.
5. Financial assistance in cases where the
employee’s dismissal is declared legal but
there are circumstances justifying this
award, such as long years of service,
unblemished record of service,
compassionate justice and other
consideration.
6. Legal interest on separation pay, back
wages and other monetary awards.
vi. May an employer be held liable for the Yes, under Republic Act 7877: The Anti-Sexual
resignation of an employee due to Harassment Act of 1995. The employer or head
inaction by the employer on a complaint of office, educational or training institution will
for sexual harassment? be held liable for the damages arising from acts
of sexual harassment if they are informed by the
offended party of the occurrence of such acts,
yet no action has been undertaken.
 The employer or head of office is required by
the law to prevent the occurrence of sexual
harassment acts and to provide the procedures
for the resolution, settlement or prosecution of
sexual harassment. Towards this end, the
employer or head of office shall:

1. Promulgate appropriate rules and

regulations in consultation with and
jointly approved by the employees or
student or trainees, through their duly
designated representatives. Said rules and
regulations shall prescribe the procedures
for the investigation of sexual harassment
cases and the administrative sanctions
thereof.
2. Create a Committee on Decorum and
Investigation (CODI) of cases on sexual
harassment. The committee shall conduct
meetings or as the case may be, with
officers and employees, teachers,
instructors, professors, coaches, trainors
and students or trainees to increase
understanding and prevent incidents of
sexual harassment. It shall also conduct
the investigation of alleged cases
constituting sexual harassment.
b. Termination by the employee with just cause
i. What are the grounds available to the Under Article 300 (b) of the Labor Code, an
employee to terminate his/her employee may put an end to the employment
employment? relationship without need of serving notice on
the employer by reason of any of the following
just causes:
1. Serious insult by the employer or his
representative on the honor and person
of the employee;
2. Inhuman and unbearable treatment
accorded the employee by the employer
or his representative;
 3. Commission of a crime or offense by
the employer or his representative
against the person of the employee or
any of the immediate members of his
family; and
4. Other causes analogous to any of the
foregoing.
No. Unlike resignation without just cause,
where the law requires prior written notice, the
employee may terminate his employment
ii. Is the 30-day notice required in case of without serving any notice, verbal or written,
termination by the employee with cause? to the employer if such occasioned by any of
the just causes mentioned under the law or by
any fact or circumstances clearly showing the
involuntary nature of the Resignation.
7.1 RESIGNATION V. CONSTRUCTIVE DISMISSAL
A. PRELIMINARY CONSIDERATION
i. Explain the right to security of tenure. Every employee shall be assured security of
tenure. No employee can be dismissed from
work except for a just or authorized cause, and
only after due process.

Just Cause refers to any wrongdoing committed

by an employee including:
1. serious misconduct
2. willful disobedience of employers'
lawful orders connected with work
3. gross and habitual neglect of duty
4. fraud or willful breach of trust
5. commission of crime or offense against
the employer, employer's family
member/s or representative
6. other analogous cases

Authorized Cause refers to an economic

circumstance not due to the employee's fault,
including:
1. the introduction of labor-saving devices

ii. Distinguish just causes from authorized Dismissal of employees requires the observance
causes in terminating the employee.
2. redundancy
3. retrenchment to prevent losses
4. closure or cessation of business
Due Process in cases of just cause involves:
1. notice to employee of intent to dismiss
and grounds for dismissal
2. opportunity for employee to explain his
or her side
3. notice of decision to dismiss
In authorized causes, due process means written
notice of dismissal to the employee specifying
the grounds, at least 30 days before the date of
termination.
The inability of a probationary employee to
meet the employer's prescribed standards of
performance made known to him or her at the
time of hiring is also a just cause for dismissal.
of the two-fold due process requisites, namely:
(1) Substantive aspect which means that the
dismissal must for any of the just causes
provided under Article 297 of the Labor Code or
the company rules and regulations promulgated
by the employer or authorized causes under
Article 298 of the Labor Code, and (2)
Procedural aspect which means that the
employee must be accorded due process, the
elements of which are notice and the opportunity
to be heard and to defend himself.
A dismissal based on just cause means that the
employee has committed a wrongful act or
omission; while a dismissal based on
authorized cause means that there exists a
 ground which the law itself authorizes to be
invoked to justify the termination of an
employee even if he has not committed any
wrongful act or omission.
Under Article 294 of the Labor Code, an
illegally dismissed employee is entitled to the
following reliefs:
1. Reinstatement without loss of seniority
rights and other privileges;
2. Full back wages, inclusive of allowances;
and
3. Other benefits or their monetary
equivalent.

Other Reliefs not found in Article 294:

1. Separation pay in lieu of reinstatement.
2. Indemnity in the form of nominal
damages in case of termination due to just
or authorized cause but without affording
iii. What are the reliefs awarded to an the employee procedural due process.
illegally dismissed employee? 3. Reliefs to an illegally dismissed
employee whose employment is for a
fixed period consisting of the payment to
him/her of his/her salaries corresponding
to the unexpired portion of the
employment contract.
4. Moral and exemplary damages and
attorney’s fees.
5. Financial assistance in cases where the
employee’s dismissal is declared legal but
there are circumstances justifying this
award, such as long years of service,
unblemished record of service,
compassionate justice and other
consideration.
6. Legal interest on separation pay, back
wages and other monetary awards.
Yes. Separation pay may be a relief under the
iv. Is separation pay a relief under the Labor
Labor Code for an unlawfully terminated
Code for an unlawfully terminated
employee.
 employee? What is the basis for
separation pay as a relief?
Article 294 expressly mandates only actual
reinstatement and never the alternative remedy
of separation pay in lieu thereof. But
jurisprudence clearly enunciates the award of
separation pay in the event actual reinstatement
is not possible or feasible. Undeniably, it is a
recourse based on equity that has been
sanctioned by the Supreme Court in a catena of
cases.

Specific instances includes:

1. Where the relationship between the
employer and the employee is no longer
viable due to the strained relations and
antagonism between them. (Doctrine of
Strained Relations)
2. When reinstatement proves impossible,
impracticable, not feasible or
unwarranted for varied reasons and thus
hardly in the best interest of the parties.

B. SERIOUS MISCONDUCT; WILLFUL DISOBEDIENCE OF THE LAWFUL ORDER OF THE

SUPERIOR
i. What are the essential elements to
validly terminate an employee based on
serious misconduct?
ii. Cite circumstances of serious
misconduct that may be committed in
the workplace.
For misconduct or improper behavior to be just
cause for dismissal, the following requisites
must concur:
1. It must be serious.
2. It must relate to the performance of the
employee’s duties.
3. It must show that he has become unfit to
continue working for the employer, and
4. It must have been performed with
wrongful intent.
1. Committing libel against an immediate
superior.
2. Possession or use of shabu or other illegal
drugs in the employment premises.
3. Drug abuse inside the company’s
premises and during working hours.
 4. Immorality as general rule. Except when
such immoral conduct is prejudicial or
detrimental to the interest of the
employer.
5. Sexual intercourse inside company
premises, more so when doing during
working hours.
6. Immoral act committed beyond office
hours.
7. Circulating email message if contents
constitute wrongful act.
8. Challenging superiors to a fight
9. Assaulting another employee is a just
cause for termination.
10.Gambling within company premises
11.Instigating husband to maul her
supervisor.
12.Sexual Harassment.

The requirements to terminate employee based

on willful disobedience or insubordination are
as follows:
1. The employee’s assailed conduct must
have been willful or intentional, the
willfulness being characterized by a
wrongful and perverse attitude; and
2. The order violated must be based on a
reasonable and lawful company rule,
regulation or policy and made known to
iii. What are the requirements to terminate an the employee and must pertain to the
employee based on willful disobedience duties for which he has been engaged to
discharged.

Requisites for validity of company rules and

regulation
1. Lawful and reasonable
2. Sufficiently known to the employee, and
3. In connection with the duties for which
the employee has been engaged to
discharge.
iv. Explain why the following instances
may/may not be used a valid ground to
terminate an employee based on serious
misconduct or willful disobedience:
2. Commission of sexual harassment
3. Violation of the Safe Spaces Act
1. Employee found positive for using
dangerous drugs
May be a valid ground to terminate an
employee based on serious misconduct.
The court ruled in the case of Jose, Jr vs
Michaelmar Phils, Inc. that the court has
taken judicial notice of scientific findings
that drug abuse can change mental
faculties of the user.
May be a valid ground to terminate an
employee based on serious misconduct.
In the case of Philippine Aeolus
Automotive United Corporation vs
NLRC, the gravamen of the offense in
sexual harassment is not the violation of
the employee's sexuality but the abuse of
power by the employer. Any employee,
male or female, may rightfully cry "foul"
provided the claim is well substantiated.
Strictly speaking, there is no time period
within which he or she is expected to
complain through the proper channels.
The time to do so may vary depending
upon the needs, circumstances, and more
importantly, the emotional threshold of
the employee.
May be a valid ground to terminate an
employee based on serious misconduct.
Section 17 of Safe Spaces Act states that
Employers or other persons of authority,
influence or moral ascendancy in a
workplace shall have the duty to prevent,
deter, or punish the performance of acts
of gender-based sexual harassment in the
workplace. Towards this end, the
employer or person of authority,
influence or moral ascendancy shall:
(a) Disseminate or post in a conspicuous
place a copy of this Act to all persons in
the workplace;
(b) Provide measures to prevent gender-
based sexual harassment in the
workplace, such as the conduct of anti-
sexual harassment seminars;
(c) Create an independent internal
mechanism or a committee on decorum
and investigation to investigate and
address complaints of gender-based
sexual harassment which shall;
(1) Adequately represent the
management, the employees from the
supervisory rank, the rank-and-file
employees, and the union, if any;
(2) Designate a woman as its head and not
less than half of its members should be
women;
(3) Be composed of members who should
be impartial and not connected or related
to the alleged perpetrator;
(4) Investigate and decide on the
complaints within ten days or less upon
receipt thereof;
(5) Observe due process;
(6) Protect the complainant from
retaliation; and
(7) Guarantee confidentiality to the
greatest extent possible
(d) Provide and disseminate, in
consultation with all persons in the
workplace, a code of conduct or
workplace policy which shall;
(1) Expressly reiterate the prohibition on
gender-based sexual harassment;
(2) Describe the procedures of the
internal mechanism created under Section
17(c) of this Act; and
 (3) Set administrative penalties.
4. Engaging in pre-marital relationship
when both parties have no legal
impediment to marry
Is not a valid ground to terminate an
employee. Engaging in pre-marital
relationship when both parties have no
legal impediment to marry does not
constitute serious misconduct nor
insubordination because it is not serious,
it does not relate to the performance of
the employee’s duties and it does not
show that the employee is unfit to
continue working, nor the act is
wrongful.

5. Engaging in extra-marital affairs

Professionalism entails non-interference
with the personal affairs or matters of
another. However, when it comes to
extra-marital affairs, it may be a ground
to fire an employee. Engaging in illicit
relationships, despite being married, may
constitute as just cause for dismissal on
the ground of serious misconduct through
immorality as evidenced by the
Employee’s violation of the Company’s
Employee Code of Conduct. This was
amply explained in the case of Santos vs.
NLRC [G.R. No. 115795, 06 March
1996] where the Supreme Court ruled:
“We cannot overemphasize that having
an extra-marital affair is an affront to the
sanctity of marriage, which is a basic
institution of society. Even our Family
Code provides that husband and wife
must live together, observe mutual love,
respect and fidelity. This is rooted in the
fact that both our Constitution and our
laws cherish the validity of marriage and
unity of the family. Our laws, in
implementing this constitutional edict on
marriage and the family underscore their
permanence, inviolability and solidarity.”
Well-entrenched in our jurisprudence is
the dictum that when employers issue
rules and regulations operative in a
workplace, are deemed part of the
contract of employment binding upon the
employees who enter the service, on the
assumption that they are knowledgeable
of such rules [Salvarria vs. Letran
College, G.R. No. 110396, 25 September
1998]. Such policies must be respected by
the employees. An employer cannot
rationally be expected to retain the
employment of a person whose lack of
morals, respect and loyalty to his
employer, regard for his employer’s rules
and appreciation of the dignity and
responsibility of his office, has so plainly
and completely been bared [Philippine-
Singapore Transport Services, Inc. vs.
NLRC, G.R. No. 95449, 18 August
1997]. Hence, the employer can rightfully
terminate the employment of an
employee who does not conform to its
rules and regulations. After, all, it has
been held that the right of the company to
dismiss its employees is a measure of
self-protection [Reyes vs. Minister of
Labor, G.R. No. L-48705, 09 February
1989].
Engaging in adulterous relations with
another may be considered as immorality,
which can be a ground for termination of
employment. The determination of
whether a conduct is disgraceful or
immoral involves a two-step process:
first, a consideration of the totality of the
circumstances surrounding the conduct;
and second, an assessment of the said
 circumstances vis-à-visthe prevailing
norms of conduct, i.e., what the society
generally considers moral and respectable
[Leus vs. St. Scholastica’s College
Westgrove, G.R. No. 187226, 28 January
2015].
In fact, in Alilem Credit Cooperative, inc.
vs. Bandiola [G.R. No. 173489, 25
February 2013], the Supreme Court
upheld the dismissal of an employee for
having extra-marital affairs with another
woman (not an employee of the
company) since it is a violation of the
company’s policies. In addition,
in Santos vs. NLRC [G.R. No. 115795,
06 March 1998], the Supreme Court held
that when a teacher engages in extra-
marital relationship, especially when the
parties are both married, such behavior
amounts to immorality, justifying his
termination from employment.
Furthermore, in Ogalisco vs. Holy Trinity
College of General Santos City [G.R.
No. 172913, 09 August 2007], the illicit
affair between co-teachers was
considered as just cause for termination
of the erring teachers.
C. GROSS AND HABITUAL NEGLIGENCE
i. Enumerate the requirements to The following are the requirements/requisites:
terminate an employee for gross and 1. There must be negligence which is gross
habitual neglect of duties. and/or habitual in character; and
2. It must be work-related as would make
him unfit for work for his employer.
"totality rule" states that: "the totality of
infractions or number of violations committed
during the period of employment shall be
ii. Explain the rule on totality of
considered in determining the penalty to be
circumstances
imposed on the erring employee. The offenses
committed by him should not be taken singly
and separately but in their totality. Fitness for
 continued employment cannot be
compartmentalized into tight little cubicles of
aspects of character, conduct and ability
separate and independent of each other."
To constitute abandonment, two elements must
concur: [1] the failure to report for work or
absence without valid or justifiable reason;
and [2] a clear intention to sever the
employer-employee relationship, with the
iii. What are the requirements for
second element as the more determinative
abandonment?
factor and being manifested by some overt
acts. Mere absence is not sufficient. It is the
employer who has the burden of proof to show
a deliberate and unjustified refusal of the
employee to resume his employment without
any intention of returning.
D. WILLFUL BREACH OF TRUST; LOSS OF TRUST AND CONFIDENCE
i. What are the requirements to validly For the doctrine of loss of trust and confidence
terminate an employee based on willful to apply, the following requisites must concur:
breach of trust/loss of trust and 1. The employee holds a position of trust
confidence? and confidence;
2. There exists an act justifying the loss and
trust and confidence, which means that
the act that betrays the employer’s trust
must be real (founded on real and
established facts)
3. The employee’s breach of the trust must
be willful, it was done intentionally,
knowingly and purposely, without
justifiable excuses, and
4. The act must be in relation to his work
which would render him unfit to perform
it.

ii. What types of employee may be The types of employees are as follows:
terminated based on willful breach of 1. Managerial positions;
trust? 2. Supervisory positions;
3. Fiduciary rank-and-file positions.
iii. Distinguish managerial employees from Under the Labor Code:
supervisors. "Art. 212 (m). "Managerial Employee" is one
who is vested with powers or prerogatives to lay
down and execute management policies and/or
to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline
employees. "Supervisory employees" are
those who, in the interest of the employer,
effectively recommended such managerial
actions if the exercise of such authority is not
merely routinary or clerical in nature but
requires the use of independent judgment. All
employees not falling within any of the above
definitions are considered rank-and-
file employees for purposes of this Book."
The test of "managerial" or "supervisory" status
depends on whether a person possesses
authority to act in the interest of his employer
and whether such authority is not routinary or
clerical in nature but requires the use of
independent judgment.1 The rank-and-file
employee performs work that is routinary and
clerical in nature. The distinction between these
employees is significant because supervisory
and rank-and-file employees may form, join or
assist labor organizations. Managerial
employees cannot.
iv. Who are confidential employees? Cite Confidential employees are defined as those
examples. who (1) assist or act in a confidential capacity,
in regard (2) to persons who formulate,
determine, and effectuate management
policies in the field of labor relations. The two
criteria are cumulative, and both must be met if
an employee is to be considered a confidential
employee - that is, the confidential relationship
must exist between the employee and his
supervisor, and the supervisor must handle the
prescribed responsibilities relating to labor
relations. The exclusion from bargaining units
of employees who, in the normal course of their
duties, become aware of management policies

E. COMMISSION OF A CRIME
i. What are the requirements to dismiss
an employee for commission of a
crime.
ii. Is a final judgment a requirement before conviction of an employee in a criminal case is
an employee may be dismissed based on
this ground?
F. ANALOGOUS CAUSES
How may an employee be terminated based The following may be cited as analogous causes:
on an analogous cause?
relating to labor relations is a principal objective
sought to be accomplished by the "confidential
employee rule."
A confidential employee is one entrusted with
confidence on delicate, or with the custody,
handling or care and protection of the
employer’s property. Confidential employees,
such as accounting personnel, should be
excluded from the bargaining unit, as their
access to confidential information may become
the source of undue advantage. However, such
fact does not apply to the position of Payroll
Master and the whole gamut of employees who,
as perceived by petitioner, has access to salary
and compensation data.
The following requisites for the valid invocation
of this ground:
1. A crime or offense was committed by the
employee;
2. It was committed against any of the
following persons:
i. His employer;
ii. Any immediate member of his
employer’s family; or
iii. His employer’s duly authorized
representative.
No. The Supreme Court ruled that the
not indispensable to warrant his dismissal by
his employer. The fact that a criminal
complaint against the employee has been
dropped by the city fiscal is not binding and
conclusive upon any labor tribunal.
1. Violation of company rules and
regulations
 2. Theft of property owned by co-employee,
as distinguished from theft of property
owned by the employer.
3. Incompetence, inefficiency, or ineptitude.
4. Failure to attain work quota.
5. Failure to comply with weigh standards or
employer.
6. “ATTITUDE PROBLEMS” is
analogous to loss of trust and confidence.
7.3 AUTHORIZED CAUSES
A. INSTALLATION OF LABOR-SAVING DEVICES
i. Enumerate the essential requirements to To be a valid ground for termination, the
terminate an employee based on this following must be present:
ground 1. There must be introduction of
machinery, equipment or other devices;
2. The introduction must be done in good
faith;
3. The purpose for such introduction
must be valid such as to save on cost,
enhance efficiency and other justifiable
economic reasons;
4. There is no other option available to
the employer than the introduction of
machinery, equipment or device and the
consequent termination of employment
of those affected thereby; and
5. There must be fair and reasonable
criteria in selecting employees to be
terminated.

B. REDUNDANCY
In accordance with Article 283 of the Labor
Code, Paragraph D, Section 2, Rule, Book VI,
Omnibus Rules Implementing the Labor Code,
i. What are the requirements to subject an provides:
employee under a redundancy program? For termination of employment as defined in
Article 283 of the Labor Code, the requirement
of due process shall be deemed complied with
upon the service of a written notice to the
 employee and the appropriate Regional Office
of the Department of Labor and Employment at
least thirty days before [effectivity] of the
termination, specifically the ground or grounds
for termination.
Therefore, for the implementation of a
redundancy program to be valid, the employer
must comply with the following procedural
requisites: (1) written notice served on the
employees and (2) the Department of Labor and
Employment at least thirty (30) days prior to the
intended date of redundancy. Specifically, the
purpose of such previous notice to DOLE must
be to enable it to ascertain the verity of the cause
for termination of employment.
ii. What is redundancy? Is redundancy the Redundancy refers to the condition when the
same as repeated/duplicated services of an employee are in excess of what is
position/functions? reasonably demanded by the actual
requirements of the enterprise or superfluous. It
is akin to retrenchment, which is another form
of downsizing. There is, however, a crucial
distinction — serious business losses is
indispensable in retrenchment. Even if a
business is doing well, an employer can still
validly dismiss an employee from the service
due to redundancy if that employee’s position
has already become in excess of what the
employer’s enterprise requires.
Redundancy may be repeated/duplicated
position/functions. Redundancy exists when an
employee’s position is superfluous, or an
employee’s services are in excess of what would
reasonably be demanded by the actual
requirements of the enterprise. Redundancy
could be the result of a number of factors, such
as:
• (a) overhiring of workers
• (b) decrease in the volume of business,
or
 • (c) dropping of a particular line or
service previously manufactured or
undertaken by the enterprise
That the characterization of an employee’s
services as redundant, and therefore, properly
terminable, is an exercise of management
prerogative, considering that an employer has
no legal obligation to keep more employees than
are necessary for the operation of its business.
C. Retrenchment
i. What are the elements to validly retrench The right of management to dismiss workers on
an employee? the ground of retrenchment to prevent serious
losses is governed by Article 283 of the Labor
Code. This is one of the authorized causes of
termination of employment. However, before
one can dismiss employees on the ground of
retrenchment, four elements must be proven.
Firstly, the losses expected should be
substantial.

Secondly, the substantial loss apprehended must

be reasonably imminent, and such imminence
can be perceived objectively and in good faith
by the employer.

Thirdly, because of the consequential nature of

retrenchment, it must be reasonably and
necessary and likely to effectively prevent the
expected losses. The employer should have
taken other measures prior or parallel to
retrenchment to forestall losses such as cutting
other costs other than labor cost.

Lastly, the alleged losses if already realized, and

the expected imminent losses sought to be
forestalled, must be proven by sufficient and
convincing evidences. It bears emphasis that
serious business losses should be proven by
financial statements duly audited by an
independent external auditor.
 If the grounds for retrenchment are not proved,
the retrenchment will be declared illegal and of
no effect. If the retrenched employee signed
quitclaims, they may be declared invalid. Even
his acceptance of the retrenchment pay does not
amount to estoppel which does not bar him from
contesting his separation.
Serious business losses are substantial losses,
not de minimis. "Losses" means that the
business must have operated at a loss for a
period of time for the employer "to [have]
perceived objectively and in good faith" that the
business’ financial standing is unlikely to
improve in the future.
ii. Explain serious business losses The burden of proving serious business losses is
with the employer. The employer must show
losses on the basis of financial statements
covering a sufficient period of time. The period
covered must be sufficient for the National
Labor Relations Commission and this court to
appreciate the nature and vagaries of the
business.
iii. Should the employer actually suffer from No. Article 298 uses the phrase “retrenchment
serious business losses in order to justify to prevent losses”. In its ordinary connotation,
retrenchment? this phrase means that retrenchment must be
undertaken by the employer before the losses
anticipated are actually sustained or realized.
The Supreme Court, in a plethora of cases, has
this interpreted it to mean hat the employer need
not keep all his employees until after its losses
shall have materialized.
iv. How may an employer prove serious To prove serious business losses, employers
financial reverses to justify must present in evidence financial statements
retrenchment? showing the net losses suffered by the business
within a sufficient period of time. Generally, it
cannot be based on a single financial statement
showing losses. Absent this proof, employers
closing their businesses must pay the dismissed
employees separation pay equivalent to one-
 month pay or to at least one-half-month pay for
every year of service, whichever is higher.
v. Is submission of audited financial Yes. Best evidence of losses are financial
statements a staple in proving substantial statements audited by INDEPENDENT
losses? EXTERNAL AUDITOR. And that the period
of the financial statements are material.
vi. Is the principal employer also required to
comply with the requirements of
retrenchment in terminating a migrant
worker?

There must be fair and reasonable criteria to be

used in selecting employees to be dismissed on
account of retrenchment such as (a) less
preferred status (i.e. temporary employees);
vii. What may be used as criteria in selecting (b) efficiency rating; and (c) seniority. The
“last in first out“(LIFO) rule indicates that as
an employee for retrenchment?
between two or more employees affected by a
retrenchment program, the last one employed
will be the first to go; seniority of the ones hired
earlier therefore prevails. Such rule has its
merits but its observance is not a statutory duty
of the employer.
D. Disease
i. What are the requirements to validly For the termination of an employee on account
terminate an employee on the ground of of a disease to be valid,
illness? 1. the employer must prove that the
employee concerned must be
suffering from it;
2. his or her continued employment is
prohibited by law or prejudicial to
his or her health and to those of his
or her co-employees; and
3. there must be a medical
certification from a competent
public health authority that the
disease cannot be cured within six
months, even with proper medical
treatment.

ii. May any physician issue a certification
as required by the Labor Code?
iii. May an employee be terminated for
contracting the following illnesses:
No. The word “competent” in the legal phrase
“competent public health authority” refers to a
government doctor whose medical
specialization pertains to the disease being
suffered by the employee. The company’s own
physician engaged by the employer as its
employee or hired on a retainer fee basis to
whom sick workers are referred for consultation
or treatment, is not “competent public health
authority” referred under the law.
1. HIV/AIDS
No. The Philippine AIDS Prevention and
Control Act of 1998, Republic Act 8504,
criminalizes discrimination against
people living with HIV in the workplace
“in any form from pre-employment to
post-employment, including hiring,
promotion or assignment, based on the
actual, perceived or suspected HIV
status of an individual.” Termination
from work solely on the basis of actual or
perceived HIV status is also unlawful.
The law provides penalties for medical
professionals who violate the
confidentiality of patients’ HIV status.
2. Tuberculosis
Yes. Provided that the requirement for a
medical certificate under Article 284 of
the Labor Code cannot be dispensed with;
otherwise, it would sanction the unilateral
and arbitrary determination by the
employer of the gravity or extent of the
employees illness and thus defeat the
public policy on the protection of labor.
3. Hepatitis-B
No. Under DOLE Department Advisory
No. 05 Series 2010, Workers shall not be
terminated on the basis of the actual,
perceived or suspected Hepatitis B status.

iv. May a resigned employee claim
separation pay on the ground of
illness?
v. What is the procedural requirement for the employee of his dismissal, to be issued after
terminating an employee on the ground the employee has been given reasonable
of illness?
Workplace management of sick
employees shall not differ from that of
any other illness. Persons with Hepatitis
B-related illnesses should be able to work
for as long as medically fit.
Yes. In case of retrenchment to prevent losses
and in cases of closures or cessation of
operations of establishment or undertaking not
due to serious business losses or financial
reverses including termination of employment
on the ground of disease, the separation pay
shall be equivalent to one (1) month pay or at
least one-half (1/2) month pay for every year of
service, whichever is higher.
In 2014, it ruled in Deoferio vs. Intel [G.R. No.
202996], that:
In Sy v. Court of Appeals and Manly Express,
Inc. v. Payong, Jr., promulgated in 2003 and
2005, respectively, the Court finally pronounced
the rule that the employer must furnish the
employee two written notices in terminations
due to disease, namely: (1) the notice to apprise
the employee of the ground for which his
dismissal is sought; and (2) the notice informing
opportunity to answer and to be heard on his
defense.
Thus, due process in the form of the two notice
rule has since applied to terminations for health
reasons.
In Fuji vs. Espiritu [G.R. No. 204944-45,
December 3, 2014], decided later that same
year, the Supreme Court briefly discussed what
this due process entails:
For dismissal under Article 284 to be valid, two
requirements must be complied with: (1) the
employee’s disease cannot be cured within six
(6) months and his “continued employment is
prohibited by law or prejudicial to his health as
well as to the health of his co-employees”; and
(2) certification issued by a competent public
health authority that even with proper medical
treatment, the disease cannot be cured within six
(6) months. The burden of proving compliance
with these requisites is on the employer.
Noncompliance leads to the conclusion that the
dismissal was illegal.

There is no evidence showing that Arlene was

accorded due process. After informing her
employer of her lung cancer, she was not given
the chance to present medical certificates. Fuji
immediately concluded that Arlene could no
longer perform her duties because of
chemotherapy. It did not ask her how her
condition would affect her work. Neither did it
suggest for her to take a leave, even though she
was entitled to sick leaves. Worse, it did not
present any certificate from a competent public
health authority. What Fuji did was to inform
her that her contract would no longer be
renewed, and when she did not agree, her salary
was withheld. Thus, the Court of Appeals
correctly upheld the finding of the National
Labor Relations Commission that for the failure
of Fuji to comply with due process, Arlene was
illegally dismissed.

Thus due process requires not only that the

disease’s incurability within 6 months must be
established, and this supported by certification
of a competent public health authority, but also
that the employee should be informed and given
the opportunity to respond to the findings.
 E. Closure or Cessation of Operation; Floating Status
i. Is partial closure or cessation of business
operations allowed under this rule?
ii. What are the requirements to dismiss an
employee based on closure of business?
iii. What is floating/temporary lay-off terminated.- The bonafide suspension of the
status?
Yes. Closure or cessation of business is the
complete or partial cessation of the operations
and/or shutdown of the establishment of the
employer. It is carried out either to stave off the
financial ruin or promote the business interest of
the employer.
Closure or cessation of operations of
establishment or undertaking may or may not
be due to serious business losses or financial
reverses. However, in both instances, proof
must be shown that: (1) it was done in good faith
to advance the employer’s interest and not for
the purpose of defeating or circumventing the
rights of employees under the law or a valid
agreement; and (2) a written notice on the
affected employees and the DOLE is served at
least one month before the intended date of
termination of employment.
Floating status, also known as temporary lay-
off, temporary off-detail or temporary
retrenchment, does not really expressly appear
in the Philippine Labor Code. However, it is
considered as a valid management action but
subject to compliance with Article 301
(previously Art. 286) of the Labor Code which
states:
“ART. 301. When employment not deemed
operation of a business or undertaking for a
period not exceeding six (6) months, or the
fulfillment by the employee of a military or civic
duty shall not terminate employment. In all such
cases, the employer shall reinstate the employee
to his former position without loss of seniority
rights if he indicates his desire to resume his
work not later than one (1) month from the
resumption of operations of his employer or
from his relief from the military or civic duty.”

iv. May an employer be allowed to
temporarily close or cease business
operations? For how long?
v. Is an employer required to pay separation business losses or financial reverses, such that
benefits to its employees in case of closure the employer is legally excused from paying
due to serious financial losses?
vi. What is the legal basis for placing an
employee on floating status?
The employer is allowed to temporarily suspend
work due to bona fide suspension of business
operations or undertaking for a period not
exceeding six (6) months. This is provided for
the Labor Code, as follows:
ART. 300 [286]. WHEN EMPLOYMENT NOT
DEEMED TERMINATED
The bona fide suspension of the operation of a
business or undertaking for a period not
exceeding six (6) months, or the fulfillment by
the employee of a military or civic duty shall not
terminate employment. In all such cases, the
employer shall reinstate the employee to his
former position without loss of seniority of
rights if he indicates his desire to resume his
work not later than one (1) month from the
resumption of operations of his employer or
from his relief from the military or civic duty.
If the closure or cessation of operations of
establishment or undertaking is due to serious
separation pay, the employer must also prove
such serious business losses or financial
reverses by substantial evidence.
The legal basis is direct from Article 301 of the
Labor Code (ex. Article 286)
When employment not deemed terminated.
The bona-fide suspension of the operation of a
business or undertaking for a period NOT
EXCEEDING SIX (6) MONTHS, or the
fulfillment by the employee of a military or
civic duty shall not terminate employment. In
all such cases, the employer shall reinstate the
 employee to his former position WITHOUT
loss of seniority rights if he indicates his desire
to resume his work not later than one (1) month
from the resumption of operations of his
employer or from his relief from the military or
civic duty.

This means that the employee on floating status

is still considered as an employee of the
company. He is not retrenched, and hence, is
not qualified to even apply for the SSS
Involuntary Unemployment Benefit.

STUDY GUIDE QUESTIONS FOR POST-EMPLOYMENT*

7.5 PROCEDURAL DUE PROCESS

a. What is the twin-notice rule?
The employer is required to furnish an employee who is to be dismissed with 2 written notices before
termination:
i. a.1 FIRST WRITTEN NOTICE – served on the employee containing the specific causes or grounds for
termination as provided under Art. 297 of the LC.
ii. a.2 WRITTEN NOTICE OF TERMINATION – served on the employee indicating that: 1) all
circumstances involving the charge against the employee has been considered and 2) the grounds have
been established to justify the severance of his employment.
iii.
b. Is the twin-notice rule applicable in termination based on an authorized cause?
i. D.O. No. 147-15, Sec. 5.3 – employer is only required to give the employee a written notice at least 1 month
before the intended day of termination.

c. Explain separation pay (a) as a measure of social justice; (b) as an award in case of strained relations; (c) in case
of authorized dismissals
i. (a) Under the case of Manila Water v. Del Rosario, separation pay shall be allowed as a measure of social
justice in those instances where the employee is validly dismissed for causes other than serious misconduct
or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual
intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker,
the employer may not be required to give the dismissed employee separation pay, or financial assistance,
or whatever other name it is called, on the ground of social justice.
ii. (b) Under the Doctrine of Strained Relations, an employee should be afforded the right to separation pay
when his relationship with the employer is so strained and ruptured as to preclude a harmonious working
relationship should reinstatement be decreed. The employee must be spared of the agony of having work
anew under an atmosphere of antagonism and the employer does not have to endure the continued services
of the employee to whom he lost his confidence.
iii. (c) Separation pay is mandated by Article 298 and 299 of the Labor Code in cases of dismissals under
authorized causes.
iv.
d. Explain “ample opportunity to be heard” and right to demand for hearing and be represented by counsel in
administrative investigations.
Due process of law simply means giving opportunity to be heard before judgment is rendered. There is no
law requiring that a hearing shall be conducted. It already suffices that the employee was given a chance to
explain his side of the controversy. The right to demand for hearing is given to an employee when the
circumstances require so, or if the company policy mandate. No law is also denying an employee his right
of representation.

e. What is preventive suspension?

Preventive suspension is an act of the employer where he places an employee in a situation where such
employee shall not report for work for a maximum of 30 days. An employee may be placed under preventive
suspension if:
c.1 The evidence of guilt is strong and the employer is convinced that the continued stay of the employee
during the period of investigation constitutes distraction to the normal operations of the company and;
c.2 The employee’s continued employment poses a serious and imminent threat to the life or property of
the employer or his co-workers.

f. Is the employee entitled to pay during the period of preventive suspension?

No, the employee is not entitled to wages.

g. May the employer extend the period of preventive suspension?

Yes, provided that there is a justifiable reason and the employee shall be paid with his wages and benefits
for the extended period.

h. What is the effect of a dismissal based on a just cause if the employer failed to prove that it complied with both
substantive and procedural due process?
The violation of either the substantial due process right or the procedural due process right of an employee
produces different results. Termination without a just or authorized cause renders the dismissal invalid,
and entitles the employee to reinstatement without loss of seniority rights and other privileges and full
backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the
time the compensation was not paid up to the time of actual reinstatement. While in non-compliance of the
procedural due process, the dismissal shall still be upheld, however, the employer should be held for non-
compliance with the procedural due process required by law.

1. Is it the same if the employer only failed to comply with procedural due process?
The dismissal shall be upheld, however, the employer should be held for non-compliance with the
procedural due process required by law.

2. Will it also be the same if the employer was terminated based on an authorized cause?
The law did not distinguish if the employee was terminated based on authorize cause.
7.6 RELIEFS AWARDED TO AN ILLEGAL DISMISSED EMPLOYEE
a. What are the reliefs that may be awarded to an illegally terminated employee?
An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority
rights and other privileges and to his full backwages, inclusive of allowances, and other benefits or monetary
equivalent computed from the time his compensation was withheld from the time of actual reinstatement.
Recovery of moral and exemplary damages are also available.

b. How may an employee be reinstated to a position that has already been abolished?
The employee shall be given a substantially equivalent position. If no such position is available,
reinstatement shall not be ordered. The employee shall be given a separation pay consisting of 1 month
salary for every year of service.

c. What is the doctrine of strained relations?

Under the Doctrine of Strained Relations, an employee should be afforded the right to separation pay when
his relationship with the employer is so strained and ruptured as to preclude a harmonious working
relationship should reinstatement be decreed. The employee must be spared of the agony of having work
anew under an atmosphere of antagonism and the employer does not have to endure the continued services
of the employee to whom he lost his confidence.

d. How are backwages computed?

It is computed from the time of the illegal dismissal up to the time of actual reinstatement. If reinstatement
is no longer possible, it is computed until the finality of the decision.

e. Is the employee required to return backwages and wages received during the period of appeal when a finding of
illegal dismissal is reversed?
No. The employee is not required to return the wages that he received prior to the reversal (Bergonio Jr. v.
South East Asian Airlines)

f. May an employee be granted with reinstatement and separation pay if the termination was not based either on a
valid or authorized cause?
In cases of illegal dismissal, it can only be either reinstatement or separation pay that shall be granted to
the employee, not both awards at the same circumstance. The principle remedy is reinstatement. Award of
separation pay is only given when reinstatement is no longer possible.

7.7 RETIREMENT
a. Differentiate (a) optional retirement v. compulsory retirement; (b) retirement age under the Labor Code and
retirement age of mining workers; (c) retirement age under the Labor Code and provision on early retirement
under company retirement plans/CBA.
(a) An employee, upon reaching the age of 60, but not more than 65, and has served atleast 5 years
in the said establishment, has the option to retire, provided, that there is no retirement plan or
CBA provision regarding retirement.
 (b) An underground or surface mining employee, upon reaching the age of 50 but not more than
60 is declared the compulsory retiring age for both underground or surface mining employee.
In cases of underground mining employees, the optional retiring age is 50-60 provided that
they have served at least a period of 5 years.
(c) The compulsory retirement age under the labor code is 65. The optional retiring age is 60-65
but the employee shall have served atl east 5 years in the company.

Art. 302 permits employer and employee to fix the applicable retirement age even below 60 years old.
It is legal and enforceable so long as the parties agreed set and governed by the CBA.

b. May the employer compel the employee to retire if he/she reached the age of 60 years old?
Yes, provided that it is specified in either the CBA or the employment contract.

c. When may the Labor Code be set aside in granting retirement benefits?
The Labor Code may be set aside in granting retirement benefits when there is a CBA or other applicable
employment contract providing for retirement benefits to the employee.

d. What are the requirements for an employee to be entitled to retirement benefits under the Labor Code?
Under the labor code, an employee, upon reaching the age of 60, but not more than 65, and has served
atleast 5 years in the said establishment, has the option to retire, provided, that there is no retirement plan
or CBA provision regarding retirement. Upon reaching the age of 65, retirement is already compelled and
mandated by law.

e. What are the retirement benefits under the Labor Code?

Under the Labor Code, the retirement benefits include the ff:
e.1 Amount equivalent to ½ month salary for every year of service, a fraction of 6 months shall be considered
as 1 whole year;
e.2 Cash equivalent of not more than 5 days of service incentive leave;
e.3 2.5 days representing 1/12 of the 13th month pay; and
e.4 All other benefits that the employer and employee may agree upon.

f. May retirement benefits be awarded in favor of an illegally dismissed employee?

Yes. Under the labor code, an employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed from the time his compensation
was withheld from him up to the time of his actual reinstatement. Provided that the employee has met all
the requirements in the retirement plan of the employee, and he has been illegally dismissed, he has the
right to claim his retirement benefits.
 g. May retirement benefits and separation pay be awarded in favor of an illegally dismissed employee?
Yes. The award of separation pay is distinct from the grant of retirement benefits. Under the labor code,
an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority
rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or
their monetary equivalent computed from the time his compensation was withheld from him up to the time
of his actual reinstatement. Provided that the employee has met all the requirements in the retirement plan
of the employee, and he has been illegally dismissed, he has the right to claim his retirement benefits. Award
of separation pay is given when reinstatement is no longer possible. Since the employee was already retired,
reinstatement is no longer feasible. Hence, separation pay may be awarded.

JURISDICTION, SOCIAL LEGISLATION

AND AGRARIAN REFORM

STUDY GUIDE QUESTIONS/STUDY OUTLINE

8.1 JURISDICTION AND REMEDIES

c. Voluntary arbitrator
i. What are issues falling within the jurisdiction of a voluntary arbitrator?

- Matters unresolved under the grievance machinery within 7 days

- CBA interpretation and Implementation including violations which is not gross in character
- interpretation and enforcement of company rules/policies
- interest disputes or those covering other labor disputes including ULP and bargaining deadlocks
(upon agreement)
- wage distortion in organized establishment
- Termination disputes (upon agreement)

ii. May illegal termination issues be entertained by the voluntary arbitrator?

- Yes, but only upon agreement

iii. What is the available remedy against a resolution/order/decision of the voluntary arbitrator?
- Appeal via Rule 43 (petition for review) within 15 days provided in a jurisprudence (Guagua
Ruling)
- Rule 65, but based only on grave abuse on discretion

d. National Conciliation and Mediation Board (NCMB)

i. What is conciliation-mediation?
- Conciliation-mediation is a mode of dispute settlement that brings together two disputing parties
to negotiate and settle their differences. It is a process of rational and orderly discussion of
differences between the parties to a dispute under the guidance of a Conciliator-Mediator.

- “conciliation” and “mediation” refer to a process whereby a third person

usually called Conciliator (in case of conciliation) or Mediator (in case of mediation) , intervenes in
a dispute involving two or more conflicting parties for the purpose of reconciling their differences
 or persuading them into adjusting or settling their dispute. The Conciliator or Mediator normally
does not make or render any decision, his role being confined to the functions afore-described.

ii. What matters fall under the jurisdiction of the NCMB?

- Jurisdiction over conciliation, mediation and voluntary arbitration
- A union which intends to stage a strike or an employer which desires to mount a lockout should
file a notice of strike or notice of lockout, as the case may be, with the NCMB and not with any
other office.

iii. What is the Single Entry Approach (SENA)

- Single Entry Approach (SEnA) is an administrative approach to provide a speedy, impartial,
inexpensive, and accessible settlement procedure of all labor issues or conflicts to prevent them from
ripening into full-blown disputes or actual labor cases.

iv. What issues may be placed under the SENA?

- termination or suspension of employment issues;
- claims for any sum of money, regardless of amount;
- intra-union and inter-union issues, after exhaustion of administrative remedies;
- unfair labor practices;
- closures, retrenchments, redundancies, temporary lay-offs;
- OFW cases; and
- any other claims or issues arising from employer-employee relationship (except for occupational
safety and health standards, involving imminent danger situation, dangerous occurrences /or
disabling injury, and/or absence of personal protective equipment)

v. What matters are not covered by the SENA?

- Conciliation and mediation services on notices of strikes or lockouts, or on preventive mediation
cases shall remain with the NCMB
- Under DOLE Department Order 107-10, issues arising from interpretation and implementation of
the collective bargaining agreement and those arising from interpretation or enforcement of
company personnel policies shall not be subject to the 30-day mandatory conciliation-mediation.

vi. What happens if a labor dispute is not settled under the SENA?
- Under the DOLE Department Order 107-10, in case of failure to reach agreement within the 30
day mandatory conciliation-mandatory period, the desk officer shall issue a Referral to the
appropriate DOLE Agency or Office which has jurisdiction over the dispute, or if the so agree, refer
the unresolved issues to voluntary arbitration.

vii. What is the remedy available to a party against the other who failed to comply with the
stipulations in the Compromise Agreement under the SENA?
- Under DOLE DO 151-16, in case of non-compliance, the SEADO shall exert the best effort to
effect agreement, otherwise, he/she shall refer it for enforcement. The requesting party may file an
action for enforcement with the NLRC/POEA/DOLE Regional Office, as the case may be.
- for enforcement of the agreement through the DOLE Regional Office, the requesting party may
request for the issuance of the writ of execution or the conduct of compliance visit of the responding
establishment if applicable

e. Bureau of Labor Relations (BLR)

 i. What are the functions of the BLR?
-act as national registry of unions and CBAs;
- formulate regulatory and developmental policies, standards, guidelines and programs promoting
the right to organize, including collective bargaining and improvement of the income of workers
and their organizations;
- act as lead agency in workers and employers education;
- adjudicate inter- and intra-union disputes;
- promote bipartism and tripartism; and
- formulate and implement programs that strengthen trade unionism to achieve industrial peace.

ii. What matters fall within the original and appellate jurisdiction of the BLR?
- Inter and Intra-union conflicts
- All disputes, grievances, or problems arising from, labor management relations in all work places,
except interpretation of CBA and management policies
- It has appellate jurisdiction over all cases originating from the Regional Director including
complainants for examination of union books of accounts

f. DOLE Regional Director

i. Explain the recovery/adjudicatory powers of the DOLE Regional Director.
- Under the law DOLE Regional Director wear two (2) hats thereby giving rise to the confusion as
to when they exercise their adjudicatory power under Article 129 and when they exercise their twin
visitorial and enforcement powers under Article 128 as the duly authorized representatives of the
DOLE Secretary. This adjudicatory power of the DOLE Regional Director simply mean that if the
decision of the DOLE Regional Director is issued pursuant to Article 128 which basically involves
an inspection case, the appeal should be made to the DOLE Secretary. But if the decision of the
DOLE Regional Director is made in accordance with Article 129 which does not involve an
inspection case, the appeal should be made to the NLRC.

The DOLE Regional Director shall have the original and exclusive jurisdiction over small money claims arising from labor
standard violation or specifically money claims arising from employer- employee relationship, including those of persons
in domestic or household service, involving amount NOT EXCEEDING 5,000 AND NOT ACCOMPANIED by a claim
for reinstatement.

ii. May the Regional Director exercise visitorial and enforcement powers under Article 128 of the
Labor Code?
- Yes. As a rule, the DOLE Regional Director exercise their twin visitorial and enforcement powers
under Article 128 as the duly authorized representatives of the DOLE Secretary.
The visitorial and enforcement powers granted to the DOLE Secretary and the DOLE
Regional Directors who are his duly authorized representatives, are quasi-judicial in nature.
What is being inspected in the exercise of the visitorial and enforcement powers granted to the
DOLE Secretary or the DOLE Regional Directors under Article 128 is the employer establishment
and not the employees thereof. Consequently, in case of a finding of violation of the labor standards,
the awards granted in the inspection case are not confined to employees who signed the complaint
inspection but are equally applicable to all those who were employed by the establishment concerned
at the time the complaint was filed, even if they were not signatories thereto

iii. What remedy/ies is/are available against decisions/resolutions/orders of the Regional

Director?
 - Those rendered by DOLE Regional Directors under Article 129 of the Labor Code they are
appealable to the NLRC
- Those issued by DOLE Regional Directors in their capacity as Ex-Officio Voluntary Arbitrators
(EVAs) they can be brought directly to the CA under Rule 43 of the Rules of Court
- Appeal to the DOLE Secretary in case of:
- Labor standards enforcement cases under Article 128;
- Occupational safety and health violations;
- Complaints against private recruitment and placement agencies (PRPAs) for local
employment.

g. DOLE Secretary
i. Discuss the visitorial and enforcement powers under Art. 129 of the Labor Code.
- Visitorial power is the power of the SOLE or his duly authorized representative to have access to
employer’s records and premises at any time of the day or night whenever work is being undertaken, it
includes the right to copy therefrom, to question any employee and investigate any fact, condition or
violations for the enforcement of labor laws.

- Enforcement power is the power of the Secretary of Labor to compel employer to comply (Compliance
Order and/or Work Stoppage/Suspension) with labor standards upon finding of violation discovered in
the course of exercise of visitorial power, provided that there is employer-employee relationship existing.

ii. May the DOLE Secretary determine the existence of employer-employee relationship?
Yes, considering that Er-Ee relationship is a statutory prerequisite to and a limitation on the power of the Secretary of Labor,
the Secretary can determine the existence of it for the proper exercise of its power.

iii. May illegal termination cases be settled by the DOLE Secretary?

No, because in order for the DOLE Secretary to exercise its powers there must be existence of employer-employee
relationship.

iv. What may be the remedy/ies available against decisions/resolutions/orders?

The decision of the Labor Secretary, is subject to review through R65 rules of court to the CA.

v. How does the Secretary exercise the power to assume jurisdiction over a labor dispute?

When, in the opinion of the Secretary of Labor, labor dispute causing or likely to cause a strike or lockout in an industry
indispensable to the national interest, the Secretary can assume jurisdiction by giving notice of such order of assumption to
the parties through personal or substituted service in accordance with the Rules of Court.

h. Labor Arbiter
i. Identify the cases falling under its jurisdiction under the (a) Labor Code (b) Migrant Worker’s
Act
- ARTICLE 224. [217] Jurisdiction of the Labor Arbiters and the Commission. — (a) Except as otherwise
provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide,
within thirty (30) calendar days after the submission of the case by the parties for decision without extension,
even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-
agricultural:

(1) Unfair labor practice cases;

(2) Termination disputes;

(3) If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of
pay, hours of work and other terms and conditions of employment;

(4) Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee
relations;

(5) Cases arising from any violation of Article 264 of this Code, including questions involving the legality of
strikes and lockouts; and

(6) Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other
claims arising from employer-employee relations, including those of persons in domestic or household service,
involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim
for reinstatement.

- Migrants Workers Act

SEC. 10. MONEY CLAIMS. - Botwithstanding any provision of law to the contrary, the Labor Arbiters of the National
Labor Relations Commission (NLRC) shall have the priginal and exclusive jurisdiction to hear and decide, within ninety
(90) calendar days after filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of
any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and
other forms of damages.

-Wage distortion dispute in unorganized establishment not voluntarily settled by the parties pursuant to RA. 6727

-Enforcement of Compromise settlement in accordance with Art 227.

-Contested Cases under exception clause of Article 128(b) of the Labor Code in the exercise of visitorial and enforcement
power, when the employer contest the findings of labor employment and enforcement officer and raises issues supported
by documentary proofs which were not considered in the course of inspection

ii. What is the test in determining whether an issue falls within the jurisdiction of the Labor
Arbiter or the Regional Director?

The jurisdiction will fall to the Regional Director will defend to the following:
Adjudicatory power- The claim does not exceed 5,000 and does not claim REINSTATEMENT, otherwise, Labor Arbiter.

As to Visitorial and enforcement power of the Sectary of Labor or his duly authorized representative (Regional Director),
when the employer contest the findings of labor employment and enforcement officer and raises issues supported by
documentary proofs which were not considered in the course of inspection.
Or in cases there exist no ER-EM

iii. When does the decision/order/resolution of the Labor Arbiter become final and executory?

Article 229. Decisions, awards or orders of the Labor Arbiter are final and executory unless appealed to the Commission
by any or both parties within 10 calendar days from receipt of decision, award or orders.

iv. What is the nature of the decision finding the employee to have been illegally dismissed?
In case of decision of the LA finding that there is illegal dismissal the same is immediately executory despite appeal ordering
the reinstatement of the employee concerned which may be either actual or payroll reinstatement.

v. What is the available remedy against the decision/order/resolution of the Labor Arbiter?
File a memorandum of appeal to the NLRC not a motion for reconsideration.

i. NLRC
i. What are the requirements to appeal the decision/order/resolution of the Labor Arbiter to the
NLRC?

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/herself 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, award
or order;
4. in three (3) legibly typewritten or printed copies; and
5. accompanied by:
6. proof of payment of the required appeal fee and legal research fee,
7. posting of a cash or surety bond as provided in Section 6 of this Rule, and
8. proof of service upon the other parties.
(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.

(c) The appellee may file with the Regional Arbitration Branch or Regional Office where the appeal was filed his/her answer
or reply to appellant's memorandum of appeal, not later than ten (10) calendar days from receipt thereof. Failure on the part
of the appellee who was properly furnished with a copy of the appeal to file his/her answer or reply within the said period
may be construed as a waiver on his/her part to file the same.

(d) Subject to the provisions of Article 218 (now 225) of the Labor Code, as amended, once the appeal is perfected in
accordance with these Rules, the Commission shall limit itself to reviewing and deciding only the specific issues that were
elevated on appeal.

ii. May the NLRC deny an appeal for failure to post a surety/appeal bond? Will it be the same if
the bond is only insufficient?

As a Rule, failure to post a surety or appeal bond is a sine qua non to the perfection of appeal from labor arbiter’s monetary
decision. As when the bond is only insufficient the NLRC can exercise its discretion to allow it to be completed for the
interest of justice depending on the facts or circumstances such as good faith which can be seen through the partial
compliance with the order to obtain a bond.

iii. What falls under the original and appellate jurisdiction of the NLRC?

Exclusive Original Jurisdiction (CVIC)

1. Certified cases- cases certified to it for compulsory arbitration by the SOLE or the President
2. Verified petition to annul or modify the order or resolution of the LA
3.Petition for Injunction in ordinary labor cases (225 e) and strikes and lockouts (279)
4. Contempt Cases

Exclusive Appellate Jurisdiction of the NLRC

1. Cases decided by the Regional Offices of the DOLE in the exercise of adjudicatory function under Article 129.
2. Cases decided by the Labor Arbiter under Labor Code and Migrants Workers Act
3. Cases decided by the Labor Arbiter on wage distortion problem in non-unionized establishment.
4. Order issued in relation to enforcement power of the Regional Director under Art 128
5. Denial of 3rd party claim where the property is levied by the Sheriff of Labor Arbiter can be appealed to the NLRC

iv. When does the decision/order/resolution of the NLRC become final and executory?
10 calendar days from receipt thereof by the counsel or authorized representative or the parties if not assisted by counsel or
representative without having to filed a motion for reconsideration nor petition for certiorari under Rule 65 when
accompanied by injunction.

v. What is the remedy against the decision/order/resolution of the NLRC?

File a motion for reconsideration and if denied file a petition for certiorari under Rule 65 to the Courts of Appeal with a
corresponding issuance of writ of injunction or TPO to enjoin the judgment of the NLRC

j. Court of Appeals and the Supreme Court

i. May the decision of the NLRC in an illegal dismissal be enforced/executed despite a pending
petition before the Court of Appeals challenging the said decision?
Yes, considering that petition for certiorari to the decision of the NLRC to the CA if not enjoined by issuance of injunction
or TPO can be enforced and executed pending such review.

ii. What ground/s may be raised by a party against the decision/order/resolution of the NLRC
involving a complaint for illegal dismissal?
That the NLRC exercised its power without jurisdiction or in excess thereof amounting to grave abuse of discretion under
RULE 65.

iii. What is the remedy against the decision of the Court of Appeals involving a complaint for
illegal dismissal?
The proper remedy is to file a petition for review under R45 on purely question of law to determine if the decision of the
CA whether or not the NLRC exercised its power with grave abuse or discretion is proper or not.

k. Prescription of actions
i. What are the prescription period in the following causes of action:
1. Money claims arising from employer-employee relationship
All money claims shall be filed within 3 years from the time the cause of action accrued.

2. Illegal dismissal
4 years from the time the cause of action accrued because it is an injury contemplated by law.

3. Money claim and Illegal dismissal

4 years applies to the claim of backwages and damages due to illegal dismissal.

4. ULP
1 year from the time the acts complained were committed.

5. Other offenses under the Labor Code

Offense punishable by the Labor Code as a rule is 3 years

6. Illegal recruitment; Illegal recruitment involving economic sabotage

5 years for simple illegal recruitment and 20 years for illegal recruitment involving economic sabotage.