Labor Law Review

1st meeting

Labor - Physical or mental exertion of effort. Target is to produce goods and services. May refer
to manpower, labor force, work force, working force.
 Totality of the working force necessary to produce goods and services.
 Human resources are yet to be developed. When they develop, they become manpower
 Human resources balewala, pag may skill, manpower nay an
 Manpower is the portion of the population of the state necessary to produce goods and
services
 Labor Law – law, rule or regulation, defines relationship bw Er-Ee. Er having control and
supervision over the other known as Ee and the latter is paid his compensation.
o Pasok 2 tests in det. Er ee rel.
o 1. Control Test
o 2. Paymet of Wages Test
o In your mind, fourway forefront/fourfall test.
o The indicia of determination –
o Selection of putative employee
o Payment wages
o Presence absence power of dismissal
o Presence absence of power of control
 Totality of these tests is actually an exercise of management prerogative.
 Management prerogative – authority or power of the management to regulate all
aspects of employment under its own discretion and judgment from a time an employee
is hired up to the time that he is dismissed.
o Who hires an employee? Employer.
o Employer can choose to hire but the employee is a beggar, he cannot choose.
o Once he is hired, he is paid his compensation.
o If he is hired, not paid his compensation, the labor law principle violated is No
Work No Pay Principle. Correct naman ito, but if I were you, to be given
additional credit to your answer = Ilagay ay Fair Days Wage for a Fair Days Labor
principle.
o If you are hired, you work, you get paid.

 Is there an instance where although an employee works, he is not paid?

o Status of women workers in certain establishments, night club, day club,
massage clinics – with or without compensation.
o They are dependent on tips coming from customers.
 How about, he does not work but he gets paid?
o Payroll reinstatement.
o This is an option of the employer given by law.
o Employer can choose to reinstate an employee actually, or in the payroll.
o Theres violation of no work no pay and fair days wage for a fair days labor.
 Employer hires employee, he is paid his compensation. Now, if he is hired, there must
be a contract of employment. Are there instances where although there is no contract
of employment, still, there exists Er-Ee relationship.
o Control Test – most important test
o Economic Relations/Reality Test – to be specific. Adopted from US. Prevailing
economic circumstances bw Er-Ee such as submission of the name of a person in
the agencies of the govt (BIR, SSS, PAGIBIG), he is paid his compensation, issued
his ID. Kahit walang contract of Employment.
o Another instance – resident physicians. Medical Center Case. Considered
employees of hospital.
o Another instance – labor only contracting vs. job contracting of an independent
contractor.
 Finding of only labor only contracting will make contractor only an
intermediary of a principal.
 Contractor – Not registered, no substantial capital of investment, no
control and supervision over its employees and therefore, they become
direct employees of the principal or owner of the project.
 Once a worker is hired, paid his compensation, he should comply with all the policies
and regulations of the company.
o If he transgresses, violates, does not comply with R&R of the company, what is
that management prerogative against him?
o Disciplinary power of the management. Power to discipline employees.
o In the process of disciplining employees, employer determines the degree of
penalty imposed that can be imposed to him, depending on the degree of
offense committed.
o Under the Proportionality Rule or Doctrine of Commensurate Penalty.
o Penalty imposed must be proportional to degree of offense committed. If
offense committed is so serious or aggravated in nature, er can impose supreme
economic death penalty of dismissal.
o If mere minor misconduct, is dismissal proper? No. (Correct but maliit percent)
Better answer – if it were a mere minor misconduct, dismissal is too harsh a
penalty.
 Proportionality principle
o In determining penalty, SC considers:
o Length of service
o Gravity of the offense
o First Offense Rule
o Nature of employment
o Nature of business
o Totality of Infractions
o Principle of charity, compassion, understanding
o Compassionate justice
o Human Relations
 o Principle of Equity
o Human Considerations on some equitable grounds
 Equity means justice outside legality.
 Justice outside the law
o Outside the law principles but being applied by the SC.
 Ex. Panadero. Nakahubad, umaalat tinapay. 15 years of service. Tumawag sa jowa. Nag
crave pandesal. Kumuha 15pcs pandesal. Hinarang security. Walang resibo. Theft, act of
dishonesty. Dismissed. Is dismissal proper?
o Stealing company property is an act of dishonesty. But there were cases decided
by the SC where the value of thing taken is negligible, dismissal is too harsh a
penalty. As against his 15 years of service.
o Dismissal is too harsh a penalty considering that the value of property taken is
negligible. Considering his 15 years of service. Considering his 15 years of
service, it was his first offense (under the first offense rule)
 If what was taken/stolen, the value of which is 2M Php, 20 years in the service
o Dismissal is justified under the circumstances.
o Length of service is overshadowed by the gravity of the offense.
o What if he is reinstated but no award of backwages. Why?
 In order not to give premium to an act of dishonesty
 Power of Dismissal – mgt. prerogative
 Power of Control – mgt. prerogative
o Not only as to the manner but also as to the result thereof.
o Jimenez v. NLRC. Most crucial Test in det. Er-Ee rel.
o Assumes primacy over all other considerations
o Management prerogative is control eh.
o Absorbed and econ reality test sa control test. Kasi nga it assumes primacy
 Two-type test.
o Kinakabit Economic Dependence Test
o Pareho lang yun eh.
o As between labor and capital, labor is weak and helpless because of its
economic dependence upon capital. The one that holds finances is employer.
o Totality of all circumstances Test
 Four fold or fourway test is the indicia of determination
 Pero pag walang contract of employment, econ reality test.
 Does every form of control establish Er-Ee relationship? Explain
o Not every form of control establishes Er-Ee relationship
o In a mark case a line shall be drawn between rules that only promote the result
no er ee here.
o and rules that provide the manner and method that should be complied with by
the employee under the second category, here it establishes Er ee relationship.

 Other management prerogatives

 o Employment contract, express or implied
o Implied – ung walang papel.

 Types of Labor Law

o Protective legislation
o Labor standards
o Social legislation
o Labor relations
o Admin legistlation
o Diplomatic legislation

 Protective Legislation
o Law designed to protect certain types of employees or workers who are usually
unfairly treated in an employment contract
o Who are usually unfairly treated? Women workers. Disabled workers. Children
Workers. PWDs. Laws that protect them, especially women workers are
classified as protective legislation.
o Example: VAWC law. Econ Abus, Psych, Physical, Sexual, Battered Woman
Syndrome. Anti sexual harassment law.
o Sexual harassment justifies dismissal. Form of serious misconduct said by SC.
 Purpose: to protect ees from oversex superiors
 Sobrang libog
 Too much libido
o 2 types of Sexual Harassment
 1. Quid pro quo – I give so you may give. I scratch your back you scratch
mine. Economic in nature.
 Request of sexual favor – most impt element
 Hindi pinagbigyan superior officer. There is an adverse tangible
action. Pwede ito sa lalake at babae.
 Inassign tuloy sa malayong lugar, pinahirapan. Given additional
duties of conscience beyond her means to perform. Inconvenient,
unbearable, unreasonable, prejudicial transfer. Constructive
dismissal. Dinemote. Binawasan sweldo. Dismissed.
 There is sexual harassment.
 Now, pinagbigyan siya. So it become incumbent for superior
officer to live up to its promise. Ipromote ka daw.. Tapos di ka
napromote
o If there is promotion, there is increase of benefits
 Security guard patrolling company, heard loud voice, “shet shet
tangina ka” Saw employees, having sexual commerce. Both of
them were dismissed.
o Dismissal is valid!
o Sexual intercourse is sacrosanct it is sacred. Dapat di ka
 malicious. Given by god for procreation. Binababoy lang
ng iba
o Sexual intercourse inflamed/ pinainit by lust, affection.
Should be done in a manner that it should not offend
public decency.
o May malice ba un? Wala.
o You do it in privacy. Not in public place like company
premises.
 2. Hostile work environment
 Employee is placed in an intimidating, hostile, offensive
environment.
 Hijo, hija, halika nga. Alam mo sa tagal nating magkasama sa
opisina, nabibighani ako sa ganda mo. Lalo pag nakikita ko yung
hita mo. Ang ganda talaga pramis.
 May sexual harassment? Wala.
 Alam mo sa tagal nating magksaama sa opisina, pag nakikita kita
na dumarating ka ambango bango mo. Nalilibugan ako sayo.
Tignan mo nakatayo na oh. Compelled the woman to resign.
 May sexual harassmet? Yes.
 SC: sa second type, it could be by means of sexual remarks.
Sexual utterances. Sexual flirtations. Touch is not an impt
element. With more reasons pag meron touch. Pero kahit wala,
there is Sexual Harassment.
 Woman can file a case of constructive dismissal. YES!
 WoN there is constructive dismissal?
o Tip: place the meaning of constructive dismissal
o Inject the facts of the problem.
o Most impt element: quitting from the job.
o Employee quits from the job because continued
employment becomes unreasonable, unlikely,
unbearable. Demotion in rank, in pay, unreasonable
transfer.
o Employer makes it hard for an employee to perform his
duties and responsibilities.
 Becomes unbearable under the circumstances brought about by
the sexual remarks of the superior officer.

Management prerogatives
 Several discriminatory practices
o 1. Discrimination in pay
o 2. Work opportunities
o 3. Hiring
o 4. Dismissal
 o 5. Where a woman employee was dismissed due to her pregnancy or signs
contract of adhesion agreeing when she gets pregnant, she will resign. Forcelose
opportunity of woman ee to bear children, right to procreation. Against the law
of God.
 PTNT v. NLRC
 Cialsita v. PAL Cases
 Woman employee compelled to sign contract when she gets married,
she’ll resign.
 Zenna proceeding – parties required to be notified of 2 prelim
conferences. Purpose is amicable settlement.
 PAL arguments: she’ll be afflicted with un—malady – paglilihi. She’ll get
pegnant.
 SC: getting married does not necessarily get one pregnant. one may or
may not get pregnant when someone marries. One can also get pregnant
without getting married
Other laws protecting women (protective legislation)
 Women in nation bldg. act
o PMA, PNP, basic educational attainment
 Providing nursery for nursing mothers
o For health purposes

Labor standards law

 Law provides standards as to wages, hours of work, cost of living allowances, health
safety dental medical compensation benefits.
 Opthal intercourse

Ass.
Consti and statutory background
Art. II and Art. III due process clause, book 6 post employment law on dismissal in relation to
due process.



3rd Meeting 2/27/22

Glaxosmithkline Case
- Prohibiting marriage to competing company
- Standard reasonable test
- Business Necessity Rule
- Bona fide occupational qualification test
- Although discriminatory practice of company, upheld by SC to prevent disclosure of
confidential info. Which may be transmitted to competing company on account of
marriages
Non-involving clause
- Not in restraint of trade, purpose is to protect business interest
- During period of employment, worker may acquire advance knowledge on the business
strategies, trade secrets, confidential info of the company.
- All business matters acquired in the process of employment by the Ee can be used by
the Ee for his own advantage to the detriment of his former employer
- Non involvement and non compete clause not in restraint of trade but valid. It is to
protect business interest.
- Ee is prohibited to put up a business, same line of business as his former employer
- Lest, He may put up a business in competition with former employer using the same
wealth of info acquired during his employment with former employer, to the
disadvantage of the latter. It is valid. Not in restraint of trade.
- Mgt. prerogative.
Labor standards
- Law that provides standards as to wages, hours of work, cost of living allowances,
health safety, dental, medical, compensation benefits.
o Source: Maternity Childrens Case
o Labor Code
- Econ. Benefits granted to an Ee where worker is actually working.
- Bonuses, SIL, service charges, 13th 14th month pay, OT pay, holiday pay.
- Employer provides these benefits as provided by law.
- Book III. Conditions of employment. State of Employment.
- 3 main parts of Labor Code
o Pre employment
o State of employment
o Post employment

Grant of benefits to worker while not working because of the hazards of employment
- Occupational disease –
- compensable injury
- Compensable disability
- Compensable death
o Domain of social legislation
o SSS Law, GSIS Law, ECC Law, Retirement Law, etc.
Labor standards benefits paid by Er
Social Legislation benefits not paid by Er but through a medium known as an Agency of the
Govt. Philhealth, PAGIBIG, SSS, GSIS, etc.

Book IV of LC – Social Legislation

- State Insurance Fund re: medical dental health benefits on disease, injury, disability,
death.
- ECC Law under Book IV.
 o See Art. 224 of LC – Money claims. Except Insurance, Health, Employees
Compensation Claims. Not covered as far as Employees employed here in PH.
o Pero OFW including Seamen, Covered under RA8042, aa RA 10022
 Employee
 Disease
 Nurse walang TB. Naassign sa TB ward nagka TB. Occupational
 Nainjure , nagkasakit. Ano requirement ng law as regards OFW
and Seamen?
 Seamen under RA8042, they have to be repatriated back to PH
and report to manning agency within 3d. Mandatory 3d post
medical examination rule. If he cannot report, claim will be
forfeited. If he cannot report, he has to inform manning agency
that he cannot walk, disabled. 3d is for the company to conduct
medical exam.
 Nagreport for medical exam – wala ginawa company dr. No
medical assessment made. He will be placed under the 120 day
rule on disability – temporary total disability. If within 120d, no
assessment was made, he will be placed under 240d rule
assuming there was a medical assessment made by the company
doctor, but the seaman wanted to have a second opinion, not
convinced so he contacted another dr. to conduct a medical
assessment and the med assessment chosen by the seaman was
at war or in collision with the assessment made by the company
doctor. Which will prevail between the two? Law allows the
parties to choose

https://ebvlaw.com/2017/06/03/seafarer-claiming-disability-must-undergo-medical-
examination-determine-fitness-work-company-physician-extended-240-day-period-issue-
assessment-period-cannot-pre-empt/

- Seaman
o Contract is fixed
o Not able to attain regular employment
o Not entitled to reinstatement
 - Upon expiration of contract
o Cessation automatically of er ee relationship
o Has to disembark and return home
o What if he cannot return home? Vessel still sailing at the middle of the Indian
ocean.
o Disembark at port of call where the replacement seaman arrives.
o Is he entitled to his monthly salaries?
 Still entitled to his monthly salaries but should not exceed 3 mos.
 Is there implied extension upon expiration?
 No implied extension and modification
 Consider nature of Employment contract. It is fixed period.
- Ammonia Doctrine and Castral Doctrine

Employees compensation
- Injury – sudden change in any part of the human organism.
- Principle of injury or death
- Principle of peculiaries
o Risk is peculiar to the nature of the job of the worker.
- Streetworker
o If you walk along streets, there is imminent danger. Pwede masagasaan, side
swipe, run over.
o Compensable? Yes
- Act of God: Earthquake, Typhoon – seamen
o Compensable.
- Principle of Act of Ministration – Personal comfort doctrine: Cobra Doctrine
o Any act that provides personal comfort to the human body. injury or death is
compensable.
 In working area, no potable water. Worker wants to quench his thirst.
 May sari sari store sa kabilang kalsada, tumawid, nasagasaan
 Compensable. Providing personal comfort is an act of ministration
 In working area, no comfort room
 Umihi sa fence. Outside the fence, there is cobra.
 Tip of penis bitten off.
 With timely intervention of workers, they apprehended the cobra
and opened up stomach of cobra to retrieve tip of penis for
reconnection in hospital.
Labor Relations: Social Legislation
- A law that deals on relat
- Right to self organization and all its ramifications
- Primary consti anchor is right to self organization, collective bargaining, collective nego,
right to join union, take part in formation, peaceful concerted activities for mutual help
and protection, fair and unfair labor practices
- GR: Book V.
 - XPN:
o Found in LabStan Book III – jurisd Sec. Labor, RO of the RD of DOLE
o Wage distortion – Art. 124
o Unionless Establishment
o Voluntary Arbitrator
o Non-uninozed sino may jursid – LA
o Art. 128 Visitorial and Enforcement power
o Adjudicatory function of RD Art. 129
 Complaint by househelper. No Er-Ee. No claim for reinstatement,
aggregate amt claim does not exceed 5k.
o Book VI – jurisd LA Art. 224
 ULP, concerted action, strike, lockout

Admin Legislation
- Law that creates admin bodies for labor purposes
- All admin bodies for labor purposes naman eh. Some of them exercise QJ functions ex.
NLRC: SSS

Diplomatic Legislation
- Type of labor law that prescribes mode of amicable settlement.
- Not International Law. Within realm of settlement.

Machineries of settlement
- Grievance machinery
- Vol arb
- Conciliation
- Mediation
- Prelim confercens in LA
- Senate proceeding
- IDA Power – power of Sec. Labor which is administrative intervention on dispute
avoidance. A mediation power of the SOLE.
- EVA power –
o RD and Asst. RD also has arbitration power
o Treated as ex officio vol. arbs. Kaya eva. EVA

Clause in CBA which provides for Vol. Arb.

- Conclusive Arbitration Clause in the CBA
- Griev mach and vol arb procedures in CBA
- Agreed upon by parties
- Viol of clause will make party liable for ULP for viol of CBA.

Ex. Nag file notice of strike union. San ifile? Sa NCMB for purposes of conciliation and
mediation. But there was a clause in the CBA. You are the lawyer of the company. What would
you do to protect interest of client-er. Where the union filed notice of strike with the NCMB
- File a motion to dismiss to drop notice of strike for having violated conclusive arbit in
the CBA
- NCMB will issue PMO – Preventive Mediation Order
o Purpose of PMO – is to convert the notice of strike into a preventive mediation
case.
o When PMO is issued, Notice of Strke deemed dropped or dismissed from dockets
of notice of strike as if no notice of strike filed at all.
o To prevent full blown conflict between Er and Union.
o To diffuse the heightened emotions between Er and Union brought about by
NOS.
o 15d
o 30d
o To cool off. Cooling off period.
- File ka din case ULP against the union for violation of the CBA.

Conclusive Arbit Clause

- Can you settle amicably without griev mach? YES no legal prohibition
- Amicable settlement, compromise agreement, can be made prior insti of COA, during
litigation, after litigation, there was already Writ of Execution. No legal prohibition.

Can you have voluntary amicable settlement kahit me Conc. Arbit Clause?
- Yes
- How do you do it?
o What is grievance machinery
 Grievance – pertains to matters in relation to interpretation enforcement
of company policies and CBA
 Machinery is Griev Mach provided under the LC.
o Who responsible bw Union and Er to bridge gap?
 The one who brings along grievance for purpose of settlement is a very
important person of the union known as shop steward.
 Shop steward – one who brings along with him grievance for settlement
by higher management authorities. Supervisor, supt, manager, GM,
president, VP. To settle grievance.
 If not resolved, LC sets in. Grievance machinery
 If not settled within 7d, automatically transmitted for Vol. Arb
o Who has jurisd for V.A?
 Vol. Arb.
o If compulsory arbit
 Govt intervenes
 Labor Arbiter?
o Parties agree to resolve by vol. arb, does law allow it?
 Yes. You abbreviate the proceeding? Yes
  Doctrine of speedy labor justice
 Technical rules not binding in labor proceeding.
 Macaraeg vs. San Felco

- Bago sa LA, dapat may SENA proceeding

o Purpose is settlement also
o Pag di nakapagagree. Parties only required to be there,
o Saka papasok sa LA. Youll be notified of 2 Prelim. Conferences – purpose is
settlement
- Labor cases with monetary award
o Can be settled while case pending decision in CA
o Where youre going to pay mediation fee of 1k.
o Encouraged ang conciliation, mediation, VA
o Doctrine of speedy labor justice.

Constitutional background
- Stately powers of Govt
o PP
o ED
o Taxation
- PP – related to labor law
o Supreme authority of State to enact wholesome and reasonable laws that may
clash with the liberty and property of a person in order to promote the common
good.
o Consti preamble – promotion of the common good. Not general welfare ginamit
na word.
 Diff. bw 2: General welfare – admist an exception. A law can be enacted
just to promote interest of certain sector of society
 Common Good – promotion of welfare of all the people.
 Consti. Anchor – Sec. 6, Art. XII – the right to property
bears….economic agents….common good….distributive justice.
 Distributive justice – eminent domain. Extension of social justice
also
 Distributive justice – no one has an absolute right over his
property. Same can be regulated by the State. State can regulate
acquisition, enjoyment, prop. And equitable diffuse property,
profits.
- ED – yes
o Distributive justice
o Can expro land estates for distribution to the landless
o CARL – to be given a family sized farm, distribution of the landed property to
small farmers. Small tenants.
 o Social justice? Yes
o Principle of distributive justice.

Preamble
- Although not part of consti, not a necessity but impt.
- Not necessary but impt
- Not necessary – you can dispense with preamble, does not create office, not create
social rights, not enforce obli, but in case of ambiguities in consti, the same can be
consulted in its interpretation.

National Territory
- Calayan Group of Islands Doctrine
- Baseline Doctrine under present law
- Archipelagic Doctrine
- 12 Mile Limit
- 24 Mile Limit
- Contiguous Zone
- Exclusive Econ Zone
- 9-dash line
- Arbitration Tribunal – is it a mere sheet of paper?
o Filed a case before arbit tribunal without presence of the other party.
o Arbitration – dalawa dapat eto eh.2 party proceeding.
- Franchise is a contract
o Upon arrival of day certain, contract terminates on the day itself

Ass. Book 6 and 7

- Social Justice – target is common man.
o Common man – indigent, poor people, impoverished, in the lower bracket of the
society. Those who have less in life should have more in law.
o Related with police power – underlying principles are also bthe principles behind
police power
o Sic utere tu ut alienum non laedas– so use your own right, do not impair rights of
others
 As you assert your right, do not trample on the rights of other people
o Salus populi est suprema lex
 The welfare of the people is the supreme law.
o Calalang v. Williams – neither communism ….
o Ex. Squatting – against the law. Criminal act. Pero squatting flourished in metro
manila because they are vote rich areas pampered by politicians.
 If they get evicted by the court, squatters argued that they are their
because of prescription (50y, 70y na dun)
o Soc Justice – not a license to do what is wrong but a license to do what is right.
 o Never a refuge of scoundrels and in invoking Soc Justice, invoke it with your
clean hands
- Environmental Facts of the Case: Genuino Case (Abandoned)
o Refund Doctrine
o Ee filed case, he won, reinstated in the payroll, not actually.
o Er given two options. To reinstate actually or in the payroll. Er can choose. Er
chose payroll reinstatement. He does not want anymore an unwanted face in
the company premises who may demoralize his co workers and Er believes that
dismissal was valid. Received salaries pending appeal but he does not report for
work.
o No work no pay, OR better, fair days wage for a fair days labor
o N.B. Dismissal is not proper – minor misconduct?
 Mere minor misconduct, Dismissal is too harsh a penalty
o Talo Er sa CA, inakyat sa SC under R45. Nanalo Er
 Should Ee refund salaries received pending appeal?
 SC: He should refund, othw it violates civil law doctrine against unjust
enrichment.
 ABANDONED!!!!!
o NEW DOCTRINE: GARCIA V. PAL
 Ee should not refund anymore. Because principle of social justice renders
inapplicable, ineffective the civil law doctrine of unjust enrichment
 Bw consti principle and civil law doctrine. The one that prevails is the
Constitutional principle of social justice.
- Art. 3, Sec. 1 – Bar area
o Due process on post-employment
o Labor – treated as property within the mantle of constitutional protection.
Within the ambit
o Due process – originally, by the US SC, in Dartmouth College Case
 Adopted here in PH.
 Hears before condemnds. Proceeds from inquiry before rendition of a
final judgment. Based on latin maxim, audie alteram partem – no one
shall be condemned unheard.

Book Six – Law on Dismissal

- Types of Dismissal in relation to due process
o For a just cause with due process
o For authorized cause with due process
o For health reasons with due process
o Without just or authorized cause with due process
o For a just or authorized cause without due process
 Agabon v. NLRC
o For a false or nonexistent cause
Agabon v. NLRC
- Dismissal is valid, but for noncompliance by the Er of the due process reqt, he is liable to
pay damages, indemnity, nominal damages
o Just cause dism 30k
o Auth cause dism 50k
o For a just or auth cause – reiteration of the Wennfield Doctrine. Damages here is
1k. so it was abused by the Er. Wennfield doctrine superseded by Soriano v.
NLRC – again abused by employers.
o SC: need to revisit doctrine and abandon serrano ruling with promulgation of
Agabon v. NLRC.
o Due Process Rule – belated due process rule

Types of Due process

- 1. Constitutitonal
o Comprehensive in a sense that it covers all types of proceedings before
administrative, judicial, quasi judicial proceedings.
o Criminal Aspect
- 2. Statutory
o In Agabon, this is the type of due process as observed in Labor proceedings. Take
note of this.
- 3. Contractual
o There is employment contract. There is a policy, rule or regulation providing for
the steps in implementing due process.
o But this was not complied with by the employer.
o May policy company, practice, or in the employment contracting providing for
the steps in dismissal of employee (ironically, they violated the steps that they
provided in the contract lol)
 Violated is contractual due process.
 Same effects din naman tho for violation of statutory due process – an
illegally dismissed employee is entitled to the reliefs of: reinstatatement,
full bw, damages, attys fees, 6% legal interest on monetary award.
- In the hierarchy of evidentiary values,
o At the top, proof beyond reasonable doubt – criminal proceedings
o Clear and convincing evidence
o Preponderance of evidence
o Substantial evidence – relevant evid a reasonable mind might accept as
conclusion
 What rule governs labor proceedings? What quantum of proof applies
 SUBSTANTIAL EVIDENCE APPLIES
 XPN:
o Regarding dismissal cases, to prove illegal dismissal, the
quantum of proof is (Duty Free Philippines Case) CLEAR
AND CONVINCING EVIDENCE.
 o In order to give flesh and blood to Security of Tenure
clause of the constitution.
- 2 aspects of due process as far as labor proceedings are concerned
- 1. Substantive Aspect
- 2. Procedural aspect

Substantive Aspect
- Legality or illegality of the act of dismissal.
- No Ee shall be dismissed except for causes provided by law
o 1. Just cause Dismissal
 Dismissal initiated by employee
 No payment of separation pay
 Noncompliance with due process reqt
 Indemnity or nominal dmg 30k
o 2. Authorized Causes
 Initiated by employer
 There is payment of separation pay (mandated by law to grant/provide
SP)
 Noncompliance with due process reqt.
 50k nominal dmg is stiffer
Procedural
- Legality or illegality of the manner of dismissal
- Hearing requirement as per Perez doctrine
o No more the prevalent doctrine.
o But not totally disregarded
o You can dispense with hearing reqt under Perez doctrine.
o Under Perez, Hearing reqt that is provided for in the IRR of the LC
o But what is provided under the LC – ample opportunity to be heard.
o Now, ample opportunity to be heard ang prevailing.
 1. 1st notice – pre-notice – formal specific charges
 2. Responsive adequate answer
 3. Ample opportunity to be heard
 4. Post notice – last notice – notice of dismissal
Just causes
- 1. Serious Misconduct
o Misconduct committed in an aggravated or serious manner
o To justify dismissal, misconduct must be serious, must be aggravated
o Er can impose the supreme economic death penalty of dismissal
o Mgt prerog to choose the penalty to be imposed in disciplinary action until
dismissal, Mgt prerog ito.
 Stealing company property. SC held that in theft, you have to consider
value of prop taken
 If negligible, dismissal is too harsh a penalty
  In the im
o In the imposition of penalties, SC applied certain principles
 1. Length of service
 2. First offense rule
 3. Gravity of the offense.
 4. Nature of the employment.
 5. Nature of business.
 6. Totality of infractions
 7. Principles of compassion, understanding, charity, compassionate
justice, social justice, human considerations, or principle of equity.
o You cannot apply #1 and #2 as against gravity of the offense.
o Ee 20 yrs in service. During period of employment, never been charged any
offense or infration. He rose to ranks, became branch manager. Introduced some
innovations that would earn several millions of pesos for the company. Given
commendations, plaque of appreciations, was given increase of benefits, but
validly dismissed because of a serious offense committed.
 #1 and #2 not applicable
 Despite validity of dismissal, is he entitled to separation pay?
 Under the law, he is not entitled
 But SC can apply justice outside the law. SC used principle of
human considerations.
 His contributions to the company were given recognition by the
SC.
 Was granted Financial Assistance or you may call it Separation Pay
under these principles (HC, Equity)
 Equity is justice outside legality
 You cannot apply length of service and first offense rule as regards gravity
of offense. Length of svc is overshadowed by the gravity of the offense.
- 2. WD
- 3. Fraud
- 4. BoT
- 5. GaHNoD
- 6. CoCOaEr
- 7. Analogous Causes

Authorized Causes
- 1. Labor saving device – automation
- 2. Retrenchment
- 3. Downsizing or delayering
- 4. Redundancy
- 5. Disease
- 6. Closure of Business
- 7. Analogous Cuases
Theft, stealing company property, analogous causes (e.g. quarreling, fighting in company
premises – this will justify dismissal) these are forms of serious misconduct
- Fighting in company premises disturbs the peace of the workplace.
- Pag may nag aaway, ung ibang trabahador titigil pa, magpupustahan,
- They do not work, in the meantime as a result
o Principle of fair days wage for a fair days labor

Drug use in company premises

- If caught in flagrante, you can be validly dismissed
- Er can conduct drug test
- Initiatory test and confirmatory test. Result should be known personally by the Ee.
- Pag hindi binigay sayo, bawal.
o There is illegal dismissal if di binigay sayo
o Initial test shall be confirmed by another test. Dapat alam ng Ee.
o If not informed, violation of due process

Gambling in company premises

- As a form of SM that justifies dismissal
- It would justify dismissal because of its pernicious effects
- Asawa my 2 anak, babae sugal nang sugal. Pag wala kna maisugal, mag nanakaw ka, you
kill, OR this is public knowledge. That gambling can trigger spark the breakup of families.
o Magasawa, dalawa anak. Babae nandito sugal nang sugal. Lalake Saudi padala
nang padala ng pera. Ubos at ubos din ang pera. Nung wala na maisugal, isinugal
ng babae ang kanyang Puri. After 9 mos. Nanganak.
o Sumulat panganay na anak, na tatay uwi kna. May bago na anak kasi.

Drinking liquor in company premises

- May spark fights
- Disturbs peace.

Immorality
- Disgraceful conduct
- It would justify dismissal
- Religious charitable educ institutions. They give impetus to immorality.
- Married teacher having affair with unmarried female teacher. There is immorality.
o Relationship is outside the bounds of law, outside the bounds of morality.
- If both have capacity to marry each other, they do sexual intercourse in privacy, child
was born out of wedlock.
o No immorality. As to morality, the one that governs is not religious morality but
secular morality
o St. Vincent Cebu Case – nagkaanak sila, capacitated to marry each other.
o Even a person can choose his own future, he can marry, if he wants to marry ok,
 if he does not want, ok, he want to have a child without being married, that is his
constitutional right. Right to privacy
o Thrust of women who wanted to remain single mother by choice.
o If we apply religious morality, they can be validly dismissed. But we are not
covered by religious morality.

Teacher 50yo. Student 18yo. Capacitated to marry each other despite age disparity. Despite
disparity in educational attainment.
- Not a disgraceful conduct. Not immoral conduct. Despite age disparity. Because the
heart has its own reason which reason does not know.

Sexual intercourse in company premises. Nahuli ng guard

- Sex should be done in privacy.
- Sexual intercourse inflamed by lust or affection, it should be done in a manner that it
should not offend public decency.
- Sexual intercourse is sacrosanct.
- You have to do it in a privacy. You do it in public? Naur.

Willful disobedience or insubordination

- There is deliberate intent to disobey r&r or policy of company
- Policy must be reasonable and violated by Ee
- Law says WILLFUL
- Company motorpool, there was a rule na where a company driver cannot take out a
vehicle outside company premises without approval of supervisor. It so happened that
the driver, tinawagan ng gf nya, nagpasundo. He took out a company vehicle, sinundo
GF. Upon arrival, he was berated by the supervisor. He was dismissed.
o Nagmakaawa. First offense daw nya.
o Pwede gamitin first offense or length of service
o An isolated act of insubordination will not justify dismissal. Unless there is a
repeated commission of the same offense. Or irregularity that would
metamorphose into a serious misconduct that would justify dismissal.
- Change the facts, tinakas car sinundo GF, pabalik sa work, he was driving fast. Vehicle
turned turtle and the Mercedes benz was a total wreck. Is dismissal proper?
o Yes now. as a driver, you have the duty and obligation to take care of the
property of the company in your custody. Eh reckless ka. Wala pang paalam ang
ginawa mo. So there is what we call total absence of care on the part of the
driver. Which is indeed a form of serious misconduct.
o Gross neglect of duty – another form of serious misconduct
- Nature of business – charitable, religious
o Gasoline station, example, gasoline boy sniffing cigarette. After gassing up,
pinatawag na dismissed siya. Nagmakaawa, unlighted ang cigarette nya. Inaamoy
nya lang. kasi wala lang. inaamoy nya lang. dinismiss pa rin.
 Nature of the business deals with combustible flammable materials
  SC said that the employer can issue rules and regulations in order to
prevent conflagration of the company. Pag na ignite, whole business will
raze down to the ground.
 Company dealing with this kind of products have the management
prerogative to execute preventive safety measures to protect its
business. Slight mistake shall raze down the whole establishment to the
grounds.
- Nature of position
- Imposition of penalty (same din)

Doctrine of Commensurate penalty

- Nature of employment
o Rank and file
o Managerial
o Confidential
- R&F has diff rule with managerial as regards dismissal
o Mere finding of the bases of loss of trust and confidence will justify dismissal of a
managerial employee
o Managerial employees are the alter egos or extension of the personality of the
management
o In fact, managerial employees are employers from perspective of the rank and
file. He is an employer
- Instances where there is fusion of both employer and employee aside from managerial
employment
o Under SSS law – employer and employee at the same time. 1:40:00
o R&F employee – tedious procedure.
 If they stole, they cannot just be dismissed. Er has to consider degree of
participation of each and every worker in perpetrating such a criminal
act.
 Not mere finding of bases of loss of trust and confidence.
- Trust and confidence positions/fiduciary positions
o Company property officer, cashier, auditor, accountant, sales, agents, etc.
 Willful breach of trust and confidence. (LC)
 But in some cases decided by SC, even mere breach will justify dismissal
 Mere breach of trust and confidence, not willful, if it were a fiduciary
position. Cashier, property officer, accountant, teller.
- Totality of infractions rule/ Collective infractions rule
o Er is given the prerogative under the law to totalize previous infractions
committed by Ee. Provided for in 201 file of employee. In order to dismiss an ee.
o Will apply only if a subsequent infraction is related to previous infraction
committed.
o Ex. All infractions committed by ee can be totalized. But if this previous
infractions, each and every infraction has already been penalized, and er
 totalized this previous infractions that were already penalized to justify his
dismissal, the SC held that Er cannot do that because that would amount to
double punishment.
o Pag na penalize na, wag na itotal?????
 BUT if the Ee committed a subsequent offense, can the Er totalize all
previous offenses in order to bolster the dismissal of Ee regarding a
subsequent offense – YES.
Disease
- BOP: rests upon Er.
- By what means? Medical certificate issued by a public authority
o Government hospital or clinic
o Govt doctor, Not private doctor.
o That indeed, disease cannot be cured within a period of 6mos. And this should
be proven by med cert.
o If it were curable within a period of 6mos, then what should Er do? He should be
allowed to go on a leave of absence, and if he is already restored to his normal
health, then he should be reinstated
o Failure to reinstate = constructive dismissal
Commission of a Criminal Act of the Employee against the Employer, immediatemembers of
family, or authorized representatives
-
-

Analogous circumstances
- Comparably linked to causes enumerated under LC
o Gross inefficiency – neglect of duty
o Numerous unauthorized absences – neglect din, serious misconduct
o Immorality
o Abandonment
 The Ee deliberately abandoned his post shown by his overt acts and the
Ee here has no more intention to return. So his desire not to retire
anymore is shown by overt acts.
 Ee must have willful delverate intention not to return as shown by his
overt acts.
 Filed Leave after 2 wks did not return. 1 month did not return.
He’s already been employed in another company. This is an overt
act that he has no more intention to return.
 Assuming, he is an Ee who filed a leave of absence upon
expiration of which he did not return. 2 weeks and 1 month
ensued, he returned. Di daw nakapagreport kasi nag alaga sa
nanay nya and nagkaroon ng bagyo wala masakyan papunta sa
manila. Wala phone inagos ng baha. When he returned in
company premises in QC, he was informed by the security guard
 that his time card was torn and thrown away by HR.
 SC: time card destroyed is an indication that Ee was constructively
dismissed.
 Filed a case of illegal dismissal
o Is there abandonment?
o NO. the fact that Ee has filed a case of constructive
dismissal or illegal dismissal negates abandonment.
NEGATES!
o In abandonment – no more intention to return. The fact
that he filed a case negates abandonment because he has
the intention to return.
 In abandonment, has to comply with due process.
o 1st. notice specific charge with return to work order
(registered mail with return card)
o If he cannot be located in the address, kunyari bumalik na,
another notice should be given
o If di nagreturn to work, 2nd notice
o Notice of dismissal
o But these should be presented before the Regional Arbit
Branch of NLRC during hearing that indeed, Er complied
with 2 notice reqt.
o If er complied with that, and ee applied case of illegal
dismissal, intention to return can be disproved by Er by
showing that it complied with 2 notice rule – notice with
return address. Registered mail with return card.
o Email acceptable. Electronic evidence.
Other forms that tterminate Er-Ee relationship
- Just causes
o Unbearable treatment – wounds the feeling of Employee
o Serious insult – wounds feeling of Employee
- On the part of Ee
o Written regisnation on the part of Ee

Constructive dismissal – any act that would cmpel employee to quit his job
Bar TIP “any act that compels an employee to resign because of serious insult, unbearable
treatment, etc.” The same would metamorphose into a case of constructive dismissal.
- Quitting from job is the most impt reason –
o Demotion in rank
o Diminution in pay
o Unreasonable prejudicial inconvenient transfer
 Blue dairy doctrine
o Any act that would compel employee to resign
Forced resignation, involuntary resignation because of unbearable or serious insult would
metamorphose into a case of constructive dismissal
- Continued employment has become unbearable under the circumstances by the
continued sexual remarks given by the superior.

Quid pro quo sexual harassment

- Have adverse tangible reaction
o Ayaw pagbigyan, assigned more tasks, nilipat ng assignment.
o Purpose is to compel employee to resign.
o Case of constructive dismissal

Win win solution – Is resignation taken as an option a constructive dismissal?

Ee. Stole company property. Admitted it. But Er said, “we are about to file a crim case against
you for stealing company property, but we’re giving you an option to resign or be prosecuted in
court.” He resigned.
- No.
- Exception itong case. It is a win win solution on both parties. On the part of the
employee, if he is not charged in court, then he has a clean wheel of employment record
that will not taint or blemish his employment record which is his passport to future
employment opportunities.
- On the part of Er, it saved company from incurring litigation expenses, saved time
instead of going into full blown litigation.

Premature repatriation of OFW / Seaman

- Constructive dismissal

Authorized Causes
- 1. Labor saving device
- 2. Retrenchment
- 3. Disease
- 4. Redundancy
- 5. Closure of business
- Absent any 1 of the requirements, it will metamorphose into a case of constructive
dismissal.

As a rule, resignation must be voluntary

- If Ee is compelled to resign, that is forced/involuntary resignation - metamorphose into
a case of constructive dismissal
- Voluntary dapat, whose personal reasons could not be sacrificed in favor of the
exigency of service.
- His employment is dispensed with in favor of his personal reasons.
- Written, and acceptance is written
- Withdrawable before acceptance of Er
- After acceptance, you cannot withdraw.
 - Ee after acceptance, wants to go back.
o Er can still accept but he is now treated as a new employee by virtue of
reemployment. Not a form of reinstatement.
- Reinstatement is mandated by law, reemployment is a matter of discretion on the part
of the employer.

Suspension
- If an Ee is suspended,
- Temporary cessation of work
- Temporary layoff without compensation.
- Under the law, the time frame is 30adays
- Upon expiration of 30d timeframe, and Ee is not reinstated, the legal effect is that it
would metamorphose into a case of constructive dismissal

Nag expire 30d timeframe ng suspension. He was not reinstated, what is the procedure so that
Er cannot be charged by constructive dismissal. To validate suspension beyond 30d timeframe
- Employer should pay his 30d salary pag di nagbayad, Er is liable for constructive
dismissal
- Constructive dismissal is illegal dismissal
- In constructive dismissal, Er has intention to dismiss an employee but he does not want
to take the cudgel or initiative of doing the act of dismissal, he shall do some acts or
ways to compel employee to quit his job. Itatapon sa malayong lugar, inassignan ng
maraming work load. Pag lalabas, pinapasundan sa security guard. There is always a
prying eye.
- Illegal dismissal initiated by Er
- Constructive dismissal metamorphoses to Illegal dismissal

Voluntary resignation
- GR: in writing
- Verbally? Pwede according to SC.
- No legal prohibition upon ana employee resigning verbally. Once accepted in writing,
resignation already fait accomplice.
-

Employers are now treated as viable partners in the devt of economy of the nation. No longer
as adversaries.
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- ELYU RECORDING MIKO
Reinstatement
- Immediately self executory. No need writ of execution
- If di sumunod, file motion to cite defendant in contempt

4yrs prescriptive period to reinstatement

- Otherwise, laches may set in
Separation pay as a form of compromise to reinstatement

Other isntances where reinstatement not proper

- Position already filled up
- Abolished position
o Reinstate to substantially equal position
o If wala na talaga, payment of separation pay as a form of compromise to
reinstatement
- Closure of business
- Business has become insolvent, bankrupt, nasunog ng missile
- Reinstatement is legal and physically impossible
- Physical disability
- Reached retirement age
- Reinstatement not provided by law – ex. Kasambahay law (can take revenge)
o Ra1842, aa RA10022 Migrant workers and OFW Act
o Contractual basis sila

Can reinstatement be
- Yes, absolute ito
- Because of fear of reprisal

Kulangot doctrine
- Hambooger, kasambahay cook burger singa singa

Personal comfort doctrine

- Cobra doctrine

Full backwages doctrine

- Full na ngayon

Quantum of Proof
- In the textual decision itself, LA must discuss award of damages
- Ex. Moral damages
- If no discussion of award of exemplary damages, no award of attys fees
- Body of decision itself, not in the dispositive portion
- Moral dmg 100k pwede
- Exemplary dmg 100k pwede
Attys fees art 171
- Extraordinary concept, in the form of damages
- Awarded to dismissed employee not to the lawyer
- Dismissed employee compelled to litigate his case

Attys fees ordinary concept

- Attys fees agreed upon by dismissed employee and lawyer

Legal Interest as award

- BSP Circular
- 6%

Regular Employment
- As to nature of work
o Employee performs job that is usually necessary and desirable in the usual
business of the employer
o Used the word USUAL twice
o Auto repair shop – mechanic
 Is a legal employee
 Performs job that is usually necessary and desirable in the usual business
of the employer that is an auto repair shop
o Carpenter a regular employee? NO
 Not usually necessary and desirable in the usual business of the employer
 But a casual employee. He only performs an incidental work in relation to
principal activity of employer
- As to years of service
o Carpenter 5 yrs na sa auto repair shop
o Yes, he is a regular employee as to years of service
o Employee has rendered service for 1 yr, whether such service is continuous,
intermittent, etc.

5-5-5 doctrine
- 1 yr service, 12months and beyond
- Badge of regular employment
o Constant rehiring
o Constant renewal of contract
- Constant rehiring of a project employee
o Rehired from project to project to project
o Regular employee

Seasonal employment
- Employed from season to season to season
- Ceases to be a regular employee
XPN: despite constant rehiring employee cannot attain regular employment
- Millares v. NLRC
o Employed for fixed term fixed period contractual basis

May employer validly terminate probationary employee during that period

- Yes.
Private education
- 3 years, not school years. Provided he is active in service and gained satisfactory rating.
Otherwise
- Probationary period

Probationary period (special types of workers)

- Apprentice, Learners, Handicap
- Apprenticeship period – training period
- Lerners period – training period
- Probation – training period.
- After apprenticeship period, you are required by employer to undergo a probationary
period.
o DOUBLE PROBATION
o Against the law
- How may apprentice become a regular employee?
o
-

After training period, apprentice may be absorbed

- No mandatory provision to employ him
- No prohibition to absorb
- Different with learnership training
o

Learnership
- Premature termination of learnership contract
- Learner trained for 2 months
- Learner becomes regular employee

Company with apprenticeship contract but without program approved by tesda

- No apprenticeship program as approved by TESDA
- But with apprenticeship contract
- SC: Status of contract is unenforceable, null and void. Hence, apprentice automatically
become regular employee

Upon expiration of fixed period contract

- Upon arrival of day certain, contract terminates by itself.
 - No need for notice of termination

Permanent arbitration tribunal

- Bakit arbitration, eh need 2 parties
- Ruling ng PAT – not valid
-
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Ano training ng handicap/disabled workers
- Idk

Prescrition
- Illegal dismissal – 4 yrs
o We follow the Civil Code prescription because in illegal dismissal of an employee
there is a patent violation of his constitutional right to property. What is violated
here is right to labor, which is property, within the mantle of constitutional
protection.
o Reinstatement, full bw, attys fees, damages – 4 yrs din
o Normal consequences of illegal dismissal
- ULP – 1 yr
- Labor Code – 3yrs
- Criminal keme 4 yrs
- SSS Law – 10 yrs
- GSIS Law – 4 yrs

Govt employee, retired, upon invitation of his children, pumunta abroad, di nag file ng
retirement claim. After 10yrs, he returned to PH. While sitting in his rocking chair, and sipping
Batangas coffee, naalala nya ngayon retirement claims nya. Denied by GSIS nag prescribe na
daw. Can he file a retirement claim?
- Claim will prosper
- Retirement claim does not prescribe
- 2 claims under GSIS law

3/27/22 - listen to miko recordings + elyu huhuh

After order, you have to return towork
- Otherwise, you can be validly dismissed

After issuance of SOLE of assumption order

- Have to admit workers, same t&c prior strike
- During strike however, illegal acts were committed by union members.
- The law is empathic very categorical
o The er should admit back ees without any condition, under the same t&c of
employment prior the strike
o Pag na reinstate na sila, thats the time that er can exercise its management
prerogative to conduct a hearing for purposes of dismissal. There is still
 observance of due process in the dismissal.
o They should be reinstated actually. NOT payroll reinstatement
- Striking teachers, issued assumption order by SOLE, pero at the mean time, walang
bakanteng posisyon
o Under special circumstances, they can be reinstated in the payroll
o Exceotional case ito
- In theassumption order of SOLE, it includes therein reinstatement of striking workers in
the payroll
o Reinstatement in the payroll is a GAD
o Wala to sa law, the law contemplates only actual reinstatement.
o May assumption order na, pero walang return to work order.
 Sabi abogado ng union, wag kayo bumalik walang return to work order
 HELD: kahit walang RTW order, kelangan bumalik sa work. A RTW order is
already deemed written in the assumption order.
- Other legal effects of assumption of jurisd
o May the SOLE assume jurisd over cases cognizable by the LA?
 GR: SOLE has no jurisd over the matter cognizable by the LA
 XPN: (Except as otherwise provided in this code), the LA exercises orig
and exclusive jurisd over the ff. ULP, termination disputes, etc
 GR: Labor arbiter
 Legality illegality of strike
 Illegal dismissal
 Damages
 Consequences of illegal dismissal
 Money claims
 XPN: Assumption order by SOLE in an industry indispensable to
natl interest
- More than 5k? GR: LA
- XPN: art. 128 of LC, visitorial inspection and enforcement powers of DOLE. Regardless of
amt of claim if it is in the exercise of Regional director of its visitorial inspection and
enforcement powers.
o Power talaga eto ng SOLE but exercised thru the RD.
- May these matters of jurisd under Art. 224 be resolved/taken cognizance by Vol Arbs?
o YES! By agreement of the parties
- May the SOLE subsume over these pending cases?
o YES!
Nature of assumption power
- Ex. Issued assumption order in a bagoong factory in pangasinan
o Not a vital industry.
o Hahahahahah
o By nature, assumption power is.... plenary, full, complete and at the same time,
discretionary
o The SOLE can validly issue! YES. Although as perceived by others, the bagoong
 industry is not a vital industry.
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Right of legit. Labor org.

- Rt. Of representation
- Applies to all ees - right to be certified as bargaining agent-member/non member of
 union
- Union members pay union dues
- Non members do not pay union dues, but if they receive benefits, it is unfair no?
Violation of principle of unjust enrichment
- Parties usually inject in the CBA an agency shop.
o Antifreerider/hitch hiker clause
 You cannot be free rider, if you ride, you pay.