Question # 1:

What is Labor Standards

Answer # 1

Labor Standards, as defined more specifically by jurisprudence, are the minimum

requirements prescribed by existing laws, rules and regulations relating to wages, hours
or work, cost-of-living allowance, and other monetary and welfare benefits, including
occupational, safety, and health standards. (Maternity Children’s Hospital vs. Secretary
of Labor, GR No. 78909, June 30, 1989)

Question # 2

What is Labor Relations?

Answer # 2

Labor relations law, on the other hand, defines the status, right and duties, and the
institutional mechanism that govern the individual and collective interactions, of
employers, employees or their representatives.

Question # 3

What is the difference between the interaction of Employer and Employee in Labor
Standards and the interaction of Employer and Employee in Labor Relations?

Answer # 3

In Labor standards, the employer is active while the employee is passive. In labor
relations on the other hand, both the employer and employee are active.

Question # 4

In terms of Power relations, how do you compare the Employer and Employee?

Answer # 4

Jayson C. Malero
 The employer has the power of control over the employee because it has the property,
company, resources and other forms of capital. One thing the employer does not own is
labor. That is why the employer pays for labor. The interest of employer is profit while
the interest of employee is salary or wages.

Question # 5

What is Labor?
Answer # 5

Labor in ordinary signification is understood as physical toil although it does not

necessarily exclude the application of skill, thus there is skilled and unskilled labor.
(Azucena Labor Standard p. 9). 

Question # 6

What is the study of Labor Relations?

Answer # 6

The study of Labor relations involves the study of the interaction between two parties
who are in conflict with each other, the employer and employee in this case.

Question # 7

Compare “living wage” vs. “minimum wage”

Answer # 7

A living wage is one that is as nearly adequate as is economically feasible to maintain

the minimum standards of living necessary for the health, efficiency and general well-
being of the employees within the framework of the national economic and social
development program.

Statutory minimum wage, is the lowest wage rate fixed by law that an employer can pay
his workers.

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 Question # 8

You have an employee asking for a living wage of Php 500.00 a day and the employer is
willing to give Php 386.00 a day. Is it conflicting or harmonious?

Answer # 8

The interest of the parties is conflicting. The employee wants to maximize labor wages
while the employer wants to minimize labor cost.

Question # 9

What is social contract theory?

Answer # 9

It is based upon the notion that there is an agreement, implicit or explicit, between
citizens and those who govern, that specify rights, freedoms and liberties.
In particular, citizens forego some rights and freedom in order to live in a state that
provides security and safety.

Question # 10

What is Conflict Theory Approach?

Answer # 10

As suggested by Karl Marx, society is in a state of perpetual conflict because of

competition for limited resources. A basis premise of conflict theory is that individuals
and groups within society will work to maximize their own benefits.

Question # 11

What do you mean by “in the interest of employer directly or indirectly”?

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 Answer # 11

Under Article 219 (e) of the Labor Coder provides, "Employer" includes any person
acting in the interest of an employer, directly or indirectly. The term shall not include
any labor organization or any of its officers or agents except when acting as employer.

In the interest of employer directly means, the employer is acting directly, hiring,
controlling and paying the employees. In the interest of employer indirectly, on the
other hand, means labor only contracting . Who appears to be actually controlling is the
contractor but in the eyes of the law, the employer is the principal acting as indirect
employer.

Question # 12

How many parties are there in a Labor Only Contracting? And who appears to be
actually controlling in the Labor Only Contracting?

Answer # 12

There are three (3) parties in the labor only contracting. The Contractor, the Employer
or Principal and the Employee.

Question # 13

Is Labor Union an employer? What composes the Labor Union?

Answer # 13

No. Article 219 (e) of the Labor code provides, the term "Employer" shall not include any
labor organization or any of its officers or agents except when acting as employer. The
members of the labor union are the employees, thus, it could not be an employer. A
labor organization, however, may be considered and employer if it hires employees in
the conduct of its normal operations.

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 Question # 14

Who is an employee? Can Juridical person be an employee?

Answer # 12

Article 219 (f) of the Labor Code provides, "Employee" includes any person in the
employ of an employer. The term shall not be limited to the employees of a particular
employer, unless the Code so explicitly states. It shall include any individual whose work
has ceased as a result of or in connection with any current labor dispute or because of
any unfair labor practice if he has not obtained any other substantially equivalent and
regular employment.

No. The concept of an Employee contemplate of a natural person. If it involves a

juridical person, there is already a contractual relationship and not employer-employee
relationship.

Question # 13

Can an employer be a juridical person?

Answer # 13

Yes. A natural or juridical person can become an employer. A Natural Person is

determined by birth according to Article 40 of the New Civil Code. A Juridical Person is
one created and governed by law based on Articles 44 and 45 of the New Civil Code.
Thus, an individual person or a corporation may become an Employer as contemplated
by law.

Question # 14

What are the four fold test of Employer-Employee Relationship?

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 Answer # 14

It consist of the following elements: Right to Hire, Payment of Wages, Power of

Dismissal, and Control over the conduct of work. The power of control is the most
important determining factor. (Jao vs. Ty, GR No. 163700, April 18, 2012)

The power of control has been explained as the right to control not only the end to be
achieved but also the means to be used in reaching the end. (Control Test) (Tomaquin
vs. PLDT, GR No. 185251, October 2, 2009)

Question # 14

a. Can an Employee who has pending illegal dismissal case participate in Certification
Election?
b. How about pending the illegal dismissal case, the employee was hired by another
employee, would your answer be the same?
c. How about pending the illegal dismissal case the employee was hired for part-time
job. Is he resigned?

Answer # 14

a. Yes. An employee who has pending illegal dismissal case remains an employee of the
employer.

The Supreme Court ruled that Section 5 Rule IX of the Implementing Rules of the
Labor Code provides: Qualifications of voters; inclusion-exclusion.

An employee who has been dismissed from work but has contested the legality of
the dismissal in a forum of appropriate jurisdiction at the time of election shall be
considered a qualified voter, unless his/her dismissal was declared valid in a final
judgment at the time of the conduct of the certification election. (Yokohama Tire
Philippines Inc. vs. Yokohama Employees’ Union, GR No. 159553, December 10, 2007)

b. No. The employee now impliedly resigned.

A person whose employment ceased because of an alleged dismissal or unfair labor

practice and the same is pending before the Labor Arbiter, Is still considered an

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 employee of his/her employer provided he /she has not obtained any other
substantially equivalent and regular employment.
In this instant case, the employee was hired by another employer. Therefore, there
is already implied resignation.

c. No. The employee is not considered resigned because he has not obtained any other
substantially equivalent and regular employment. The employee was just hired for
part time job.

Question # 15

Are referees of the Philippine Basketball Association (PBA) employees of the PBA?

Answer # 15

No. In one case the court ruled that referees of the Philippine Basketball Association
(PBA) are not employees of the PBA because of the absence of control. The PBA does
not control over their conduct and decision during the game. They are considered as
independent contractors. (Bernarte vs. PBA, GR No. 192084, September 14, 2011)

Question # 16

Are maciadors and sentenciador employees of the Cockpit like in the case of Gallera de
Mandaue?

Answer # 16

No. Masiador and sentenciador are free from the direction and control of the employer
and relied mainly on their expertise that is characteristics of the cockfight gambling and
were never given by respondents any tool needed for the performance of their work.

Question # 16

Mr. X is a consultant of a multinational company “Y”. Mr. X, however, may choose to go

or not go to the office depending on his schedule. The company paid him monthly
retainers fees either at his residence or a local restaurant. Is Mr. X an employee of
company “Y”?

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 Answer # 16

No. A consultant who is not required to report every day during regular office hour and
his monthly retainer fees were paid to him either at his residence or a local restaurant is
not an employee of the company.

Question # 17

Do employees enjoy the right to security of tenure?

Answer # 17

Yes. Regardless of types of employment, the employee enjoys security of tenure.

Regular employees, who perform a particular activity which is necessary or desirable in

the usual business or trade of the employer, regardless of their length of service and the
contract entered into between the employer and the employee enjoys security of
tenure.

Project employees, performing an activity which are usually necessary or desirable in

the usual business or trade of the employer but for a definite period enjoys security of
tenure until the termination of the project or if there is just or authorized causes
applicable.

Seasonal employees, employed for the duration of the season enjoy security of tenure
unless validly terminated.

Casual employees, engaged to perform a job, work, or service which is merely incidental
to the business of the employer, and such job, work or service is for a definite period
made known to the employee at the time of engagement. The security of tenure
depends on the one year period. The casual employee can be terminated before the one
year period is attained based on just or authorized causes with due process. The casual
employee can also be terminated if the activity of the which he/she is hired is finished in
less than one (1) year. If the activity ceases to exist before and after the one (1) year
period, the employee can be terminated.

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 Question # 18

What is the significance of the one (1) year period in casual employment?

Answer # 18

The one (1) year period is fixed by law to prevent abuses by the employer by preventing
the casual employees from enjoying the benefits of regular employees, otherwise they
will become casual employees forever.

Question # 19

Petitioner company continues to operate and do business throughout the year even if
the availability of fruits and vegetable is seasonal. Are the employees project or regular
employees?

Answer # 19

The employees are regular. Large scale food processing companies such as petitioner
company continue to operate and do business throughout the year even if the
availability of fruits and vegetables is seasonal. The employees of this kind of company
are regular not project employees. (Philippine Fruit & Vegetable Industries, Inc. vs.
NLRC, G.R. No. 122122, July 20, 1999.)

Question # 20

Give an instance when a project employee becomes a regular employee.

Answer # 20

An instance when a project employee will become a regular employee if the following
requisites are present:

1. When the employee is continuously, as opposed to intermittently, rehired by the same

employer for the same tasks or nature of tasks;

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 2. Those tasks are vital, necessary and indispensable to the usual business or trade of the
employer.

Question # 21

Is it necessary to reduce casual employment into writing? What if the casual employee is not in
writing, what is the presumption?

Answer # 21

Yes. Casual employment is necessary to be in writing to state that engagement is merely 1.

incidental to the business of the employer, 2. For a definite period. If the casual employment is
not reduce in writing, the employee is presumed to be a regular employee.

Article 295 of the Labor Code provides regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has been engaged to perform
activities which are usually necessary or desirable in the usual business or trade of the
employer.

Question # 22

Distinguish Casual employee from Project employee.

Answer # 22

First, a project employee is hired to work for a particular project with a pre-determined period
which could be less or longer than one (1) year while the casual employee is hired for a
particular activity which may exists for less that or more than one year but it is not pre-
determined.

Second, notice of termination is project employment is not required while in casual

employment, it is required to apprise the employee, that the activity has ceased to exist.

Third, the project employee, in the case of a construction company, performs a job that is
necessary or desirable to he usual trade or business of the employer while the casual employee
does not perform a job that is necessary or desirable to the usual trade or business of the
employer.

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Fourth, there is a need to notify the nearest DOLE Office of the fact of termination of project
employees while there is no requirement in termination of a casual employee.

Question # 23 (Testable)

Fixed term employment is not mentioned in Article 295 of the Labor Code. But the Supreme
Court in the landmark case of Brent School, Inc. vs. Zamora which states that if an employment
will last only for a definite period, is not per se illegal or against public policy. In this case, the
Supreme Court ruled that the right of an employee to freely stipulate with his employer the
duration of his engagement should not be literally interpreted to preclude absurdity in its
application.

The right of an employee to freely stipulate is based on Article 1306 NCC. The contracting
parties may establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good customs, public order, or
public policy.

Between the Civil Code and Art. 295 of the Labor Code, which will prevail?

Answer # 23

Article 295 of the Labor Code will prevail being a social legislation.

Question # 24 (Testable)

Between a fixed term employment and a probationary period, fixed for a term of three (3)
months but also under probationary period. Which will prevail?

Answer # 24

Probationary period will prevail. Fixed term employment is allowed only in highly exceptional
cases.

Question # 25 (Testable)

Reconcile the conflict between allowing Fixed Term employment based on the Civil Code
provision on the parties right to freely stipulate and Article 295 of the Labor Code.

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 Answer # 25

Fixed term employment is not mentioned in Article 295 of the Labor Code but it is coined and
cited by the Supreme Court in the landmark case of Brent School, Inc. vs. Zamora which states
that if an employment will last only for a definite period, is not per se illegal or against public
policy. Fixed term employment contracts are the exception rather that the general rule, and are
valid only under certain circumstances. I the following instances, the court ruled that fixed-term
is an essential and natural appurtenance. (highly exceptional cases)

Valid Fixed Term Employment

1. Overseas employment contracts

2. Appointments to the positions of dean, assistant dean, college secretary, principal, and
other administrative offices in educational institution
3. Policy Instructions No. 8 of the Minister of Labor implicitly recognized that certain
company officials may be elected for what would be fixed periods such as president,
executive vice president or vice president.
4. Replacement of a school teacher who went on leave in the case of Mercado et. al vs.
AMA Computer College

Question # 26

During off season seasonal employees are temporarily laid off, but during the season they are
re -employed or when their services may be needed. They are not strictly speaking separated
from the service but are merely considered as on leave of absence without pay until they are
re-employed. Is the non payment of compensation valid?

Answer # 26

Yes. During off season the employee are not prohibited by engaging a temporary source of
income to provide for their needs because they are not entitled to receive wage during this
period applying the principle of “Fair day’s wage for a fare day’s work”.

Question # 27

What is probationary employment and why it is allowed?

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 Answer # 27

Under Article 281 of the Labor Code provides Probationary employment, which shall not exceed
six (6) months from the date the employee started working, unless it is covered by an apprenticeship
agreement stipulating a longer period. The services of an employee who has been engaged on a
probationary basis may be terminated for a just cause or when he fails to qualify as a regular
employee in accordance with reasonable standards made known by the employer to the employee
at the time of his engagement. An employee who is allowed to work after a probationary period shall
be considered a regular employee.

The purpose of this article is to give the employer a better chance to select the best and qualified
employees in the exercise of its management prerogative to hire. The law allows the employer to
make the employees undergo a trial period before the latter become regular employees. The period
is not is not more than six (6) months.

Question # 28

What are the two (2) kinds of standards used in evaluating a probationary employee?

Answer # 28

The two (2) kinds of standards are Qualitative and Quantitative standards.

Question # 29

Can you go beyond the six (6) months probationary period like one (1) year probationary
employment? How about being hired under probationary period for 3 years and you will be a law
partner after 3 years?

Answer # 29

Yes. There are two exception to the Six-Month Probationary Period. The first exception is in Article
296 which provides that the period of probationary employment shall not exceed six (6) months
UNLESS it is covered by an apprenticeship agreement stipulating a longer period. The second
exception is when the parties to an employment contract may agree otherwise, such as when the
same is established by company policy or when the same is required by the nature of work to be
performed by the employee.

Example of Probationary Period beyond six months:

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 1. Employees of company which is engage in advertisement and publication in the Yellow
Pages of the PLDT Telephone Directories, eighteen (18) months of probationary period is
allowed.
2. A probationary period of not more than three (3) years in the case of the school teaching
personnel and not more than six (6) months for non-teaching personnel shall be required for
employment in all private schools.
3. New lawyers entering law firm with probationary period of three (3) years.

Question # 30

What is an extension ex gratia?

Question # 30

In extension ex gratia, the employer granted an extension (ex gratia) after the employee failed
to pass the standards provided in the probationary employment contract. It is an act of
liberality on the part of his employer affording him a second chance to make good after having
initially failed to prove his worth as an employee.

For the safety of the employer, there must be evaluation on the employee to which he failed
and a letter from the employee asking an extension of his probationary employment.

Question # 31

What do you understand of Security of Tenure?

Answer # 31

Security of Tenure guarantees that no worker shall be dismissed except for just or authorized
causes provided by law and after due process.

Question # 32

What is the basis of the Security of Tenure?

Answer # 32

The basis of Security of Tenure is Article XIII of the 1987 Constitution and Article 297 (282) of
the Labor Code.

Section 3. 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.

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 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 to investments, and to expansion and
growth. (Article XIII, 1987 Constitution)

Labor Code:

Question # 33

Is the right of security of tenure absolute?

Answer # 33

No. There is limitation to the right to security of tenure. The management prerogative to
terminate is a limitation provided

1. such termination is exercised in good faith,

2. such termination is based on just or authorized causes, and
3. with due process

Question # 34

Can an employer and employee execute a perpetual contract of employment where the
employer cannot terminate the employee and the employee in return cannot resign?

Answer # 34

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 No. Perpetual employment in the guise of management prerogative is not valid. On the
part of the management, such perpetual employment contemplates a waiver to
terminate an employee that is contrary to public policy.

On the part of the employee, such perpetual employment is a clear violation of the
constitutional guaranteed right against involuntary servitude.

Question # 35

Peñaflor was hired as probationary HRD Manager of Outdoor Clothing on September 2,

1999. On March 13, 2000, more than six months from the time he was hired, Peñaflor
learned that Outdoor Clothing’s President, Nathaniel Syfu (Syfu), appointed Edwin
Buenaobra (Buenaobra) as the concurrent HRD and Accounting Manager. After enduring
what he claimed as discriminatory treatment at work, Peñaflor considered the
appointment of Buenaobra to his position as the last straw, and thus filed his
irrevocable resignation from Outdoor Clothing effective at the close of office hours on
March 15, 2000. He thereafter filed an illegal dismissal complaint with the labor arbiter
claiming that he had been constructively dismissed.

Can an employee who submitted an irrevocable resignation claim that he or she has
been constructively dismissed?

Answer # 35

Yes. While the letter states that Peñaflor’s resignation was irrevocable, it does not
necessarily signify that it was also voluntarily executed. Precisely because of the
attendant hostile and discriminatory working environment, Peñaflor decided to
permanently sever his ties with Outdoor Clothing. This falls squarely within the concept
of constructive dismissal that jurisprudence defines, among others, as involuntarily
resignation due to the harsh, hostile, and unfavorable conditions set by the employer. It
arises when a clear discrimination, insensibility, or disdain by an employer exists and has
become unbearable to the employee. The gauge for constructive dismissal is whether a
reasonable person in the employee’s position would feel compelled to give up his
employment under the prevailing circumstances. With the appointment of Buenaobra
to the position he then still occupied, Peñaflor felt that he was being eased out and this
perception made him decide to leave the company. (Penaflor vs. Outdoor Clothing)

Short Answer:

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 Yes. If the resignation is the result of surrounding circumstances which compelled the
employee to tender his/her resignation, then it is a product of constructive dismissal.
Even if it was an irrevocable resignation, it does not mean it is voluntary executed. It is
the burden of the employer to prove that the resignation was voluntarily executed.

Question # 36

Sheena went on AWOL from Big Brother Land, Inc. because her supervisor Manje
Capsige had a habit of touching Sheena’s hair and smelling it. Now Sheena was
terminated based on AWOL. Sheena, however, went to NLRC and filed illegal dismissal
case 2 years after the incident. Will the illegal dismissal case proper?

Answer # 37

Yes. There is unjust vexation that caused the involuntary termination of employment.
The gauge for constructive dismissal is whether a reasonable person in the employee’s
position would feel compelled to give up his employment under the prevailing
circumstances. On the date of filing the illegal dismissal case, the prescriptive period to
file illegal dismissal case is 4 years, thus, the case of Sheena is still within the prescriptive
period.

Procedural:

As an HR Manager, you must sent a notice to the employee. Investigate the Supervisor
and terminate him under just causes and then let the employee come back.

Question # 38

Can the transfer of an employee result in constructive dismissal?

Answer # 39

The exercise of management prerogative to transfer may also lead to constructive

dismissal. The employer must demonstrate that the transfer is not unreasonable, inconvenient,
or prejudicial to the employee and that the transfer does not involve a demotion in rank or a

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diminution of salary and other benefits. If the employer fails to overcome this burden of proof,
the employee’s transfer is tantamount to unlawful constructive dismissal.

Note:

First type of constructive dismissal – the employee either files an irrevocable resignation
effective immediately or go on absence without leave.

Second type of constructive dismissal - Floating Status

Question # 40

Mr. Guapo, a clerk was transferred by his Manager Mr. Maot because they were rivals in getting
the hand of Ms. Guapa, the secretary of Mr. Maot. Mr. Maot noticed that Ms. Guapa has an eye
to Mr. Guapo. Mr. Guapo filed illegal dismissal case at DOLE. Would the complaint of illegal
dismissal prosper?

Answer # 40

Yes. The transfer is not reasonable, thus, constitute a unlawful constructive dismissal, which is a
case of illegal dismissal.

Question # 41

There is a legal transfer but the employee refused. Can you terminate an employee and what is
the legal ground?

Answer # 41

Yes. The employee who refused legal transfer can be terminated under just cause based on
willful disobedience.

Question # 42

Mr. Guapo, a clerk was transferred by his Manager Mr. Maot because they were rivals in getting
the hand of Ms. Guapa, the secretary of Mr. Maot. Mr. Maot noticed that Ms. Guapa has an eye
to Mr. Guapo. Mr. Guapo filed illegal dismissal case at DOLE. Would the complaint of illegal
dismissal prosper?

Answer # 42

Yes. The transfer is not reasonable, thus, constitute a unlawful constructive dismissal, which is a
case of illegal dismissal.

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 Question # 43

What is floating status and explain how placing an employee in floating status constitutes
constructive dismissal?

Answer # 43

Under Article 301 of the Labor Code:

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.

Floating status is placing the employees in temporarily laid-off status. Six months is the period
set by law that the operations of a business or undertaking may be suspended thereby
suspending the employment of the employees concerned. The temporary lay-off wherein the
employees likewise cease to work should also not last longer than six (6) months.

After six months, the employees should either be recalled to work or permanently retrenched
following the requirements of the law, and that failing to comply with this would be
tantamount to dismissing the employees and the employer would thus be liable for such
dismissal.

In legitimate job contracting, Section 13 of DOLE DO 174 limits the floating status of employees
hired under permissible job contracting to maximum of three (3) months. The three (3) month
period should apply in case of security guards placed in floating status in view of DOLE DO 174
in contrast with the old cases where the Supreme Court applied Article 301 of the Civil Code,
using the six (6) months limit. The security guard was not given assigned post for more than six
(6) months is deemed terminated under Article 301.

Question # 44

Is DOLE DO 174 Valid since it conflicts with the Article 301 of the Labor Code reducing the limit
from six (6) months to three (3) months only?

Answer # 44

Yes. DOLE DO 174 is valid. It is an order by the Secretary of Labor as an alter ego of the
President. It is but an implementing rule or regulation. The Secretary of Labor is authorized to
regulate under Article 106.

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 The Secretary of Labor and Employment may, by appropriate regulations,
restrict or prohibit the contracting-out of labor to protect the rights of
workers established under this Code. In so prohibiting or restricting, he
may make appropriate distinctions between labor-only contracting and
job contracting as well as differentiations within these types of contracting
and determine who among the parties involved shall be considered the
employer for purposes of this Code, to prevent any violation or
circumvention of any provision of this Code.

The basis is not Article 301, but Article 106 of the Labor Code. DOLE DO 174, however, applies
only to legitimate job contracting (3 months). Outside legitimate job contracting six (6) months.

Question # 45

If I Atty. Demegelio will not be given subject load for one year, am I constructively dismissed?

Answer # 45

Yes. The limit is only six (6) months.

Question # 46

One of the management prerogative is demotion. If I will demote you without basis, can you file
illegal dismissal?

Answer # 46

Yes. There is illegal dismissal in this case. When in the duration of employment, an employee is
invalidly demoted, such invalid demotion is tantamount to constructive dismissal.

Question # 47

What is the nature of a valid demotion?

Answer # 47

A valid demotion is legal and considered an lawful exercise of management prerogative to

discipline employee. Demotion, however, must, comply the following requisites:

1. Employee is not performing well

2. Employee is at fault
3. Demotion is a penalty base on Company Policy and Standard.

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In demotion, there is reduction both in rank and in salary, unlike in promotion that there is
increase in rank but not necessarily in the salary.

Question # 48

What is preventive suspension? And discuss the salient points in valid preventive suspension.

Answer # 48

Preventive suspension is a disciplinary measure for the protection of the company’s property
pending investigation of any alleged malfeasance or misfeasance committed by the employee.

As part of management prerogative, the employer may place the worker concerned under
preventive suspension if his continued employment poses a serious and imminent threat to the
life or property of the employer or of his co-workers.

No preventive suspension shall last longer than 30 days.

The employer shall thereafter reinstate the worker in the his former or in a substantially
equivalent position or the employer may extend the period of suspension provided that during
the period of extension, he pays the wages and other benefits due to the worker. In such case,
the worker shall not be bound to reimburse the amount paid to him during the extension if the
employer decides, after completion of the hearing, to dismiss the worker.

Question # 49

Are employees under preventive suspension entitled to his wages?

Answer # 49

No. An employee placed under preventive suspension is not entitle to his/her wages under the
principle of “Fair day’s wage for Fare day’s work”.

Question # 50

What is the ground for suspension was found unfounded, can the employee claim his
backwages?

Answer # 50

Yes. In the case of Gatbonton vs. NLRC, the Supreme Court rule that should the ground for
suspension is unfounded, the employee is entitle to backwages for the period of suspension.

Question # 50

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What if the 30 day period already lapse, and the investigation is still ongoing, what are the
rights of the employee?

Answer # 50

The worker must be paid his wages. The employer may choose between payroll and actual
reinstatement after the thirty (30) day period should the investigation be unfinished.

Question # 51

Can an employer imposed to a worker an indefinite preventive suspension?

Answer # 51

No. An indefinite preventive suspension is tantamount to constructive dismissal.

Question # 52

After the worker was preventively suspended, can the employer suspend him after finding him
guilty of the administrative charge?

Answer # 52

Yes. There are two (2) kinds of suspension. Preventive and Suspension as form of penalty. It is
possible that after the preventive suspension, the employer will impose another suspension as
a form of penalty.

Question # 53

How about a janitor who slept for four (4) hours while on duty, can you preventively suspend
him?

Answer # 53

No. There is no imminent threat to the life of co-worker or property of the company to warrant
the preventive suspension of the janitor.

Question # 54

You have an employee who stabbed his co-worker, will you preventively suspend him?

Answer # 54

Yes. For not more than thirty (30) days.

Question # 55

Jayson C. Malero
Can you suspend him for sixty (60) days?

Answer # 55

No. Preventive suspension is only up to thirty (30) days unless there is an extension due to
unfinished investigation. The employer, however, must either payroll or reinstate the employee
after the thirty (30) day period. The employer would not reinstate the employee considering
the circumstances of the charge.

Note:

If after the investigation, the employee was not found to be at fault, he is entitled to
backwages.

If after the investigation, the employee was found to be at fault, there is lawful cause for
termination and the necessary penalty will be imposed.

Question # 56

Is one (1) year penalty of suspension valid?

Answer # 56

Yes. If such suspension is based on company policy.

Question # 57

Does preventive suspension have a bearing with Security of Tenure?

Answer # 57

No. Because in preventive suspension, the employee is not yet terminated but after the result
of the investigation and there is penalty, that is the time security of tenure will be affected like
the imposition of termination.

Question # 58

The penalty is termination but the employer imposed only suspension. Is the imposition valid?

Answer # 58

Jayson C. Malero
Yes. It is a Management Prerogative. There is no law preventing the employer to impose a
penalty favorable to the employee.

Question # 60 (Testable)

What will be the liability of the employer is the termination is based on substantial evidence
but the procedural due process was not followed?

Answer # 60

The court may declare the dismissal as valid but nominal damages will be awarded as a form of
penalty. ( in a previous case of Serrano vs. NLRC, the courts awards backwages which is unfair)

Question # 61

What are the amounts for nominal damages that may be awarded by the court?

Answer # 61

For authorized causes with no due process – nominal damages is P 50,000.00

For just cause with no due process – nominal damages is P 30,000.00

Question # 62

Is hearing required?

Answer # 62

As a general rule no. The exceptions are

1. When provided in the Company Policy

2. When the employee demands for it.

Question # 63

What is the number of days considered as “reasonable opportunity” given to an employee who
committed malfeasance or misfeasance?

Answer # 64

A period at least five (5) calendar days from receipt of the notice.

Jayson C. Malero
 Question # 65

What is Bona Fide Occupational Qualification (BFOQ)?

Answer # 65

Bona fide occupational qualifications (BFOQ) are employment qualifications that

employers are allowed to consider while making decisions about hiring and
retention of employees. The qualification should relate to an essential job duty
and is considered necessary for operation of the particular business.
The obesity of petitioner is a ground for dismissal under Article 282(e) 44 of the Labor Code.

A reading of the weight standards of PAL would lead to no other conclusion than that they constitute
a continuing qualification of an employee in order to keep the job. Tersely put, an employee may be
dismissed the moment he is unable to comply with his ideal weight as prescribed by the weight
standards. The dismissal of the employee would thus fall under Article 282(e) of the Labor Code. 

Star Paper Corporation v. Simbol,[66] this Court held that in order to justify a BFOQ, the
employer must prove that (1) the employment qualification is reasonably related to the
essential operation of the job involved; and (2) that there is factual basis for believing
that all or substantially all persons meeting the qualification would be unable to
properly perform the duties of the job.[67]

Jayson C. Malero