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LAST MINUTE NOTES IN LABOR LAW

(BASED ON THE PONENCIAS OF JUSTICE CAGUIOA)

1. POEA-SEC; TEMPORARY/PERMANENT DISABILITY; THIRD-DOCTOR RULE

• For the seaman's claim to prosper, however, it is mandatory that he should be examined by a
company-designated physician within three days from his repatriation. Failure to comply with
this mandatory reporting requirement without justifiable cause shall result in forfeiture of the
right to claim the compensation and disability benefits provided under the POEA-SEC.

• The seafarer, upon sign-off from his vessel, must report to the company-designated physician
within three (3) days from arrival for diagnosis and treatment. For the duration of the treatment
but in no case to exceed 120 days, the seaman is on temporary total disability as he is totally
unable to work. He receives his basic wage during this period until he is declared fit to work or
his temporary disability is acknowledged by the company to be permanent, either partially or
totally, as his condition is defined under the POEA Standard Employment Contract and by
applicable Philippine laws.

• The seafarer's condition is considered to be temporary total disability for the duration of his
treatment which shall have an initial maximum period of 120 days. If the seafarer requires further
medical treatment, the period may be extended to 240 days. Within the said periods, the
company-designated physician must assess and certify the seafarer's condition; that is, whether he
is "fit to work" or if the seafarer's permanent disability has become partial or total. However, if
after the lapse of 240 days, the company-designated physician has not made any assessment at all
(whether the seafarer is fit to work or whether his permanent disability is partial or total), it is
only then that the conclusive presumption that the seafarer is totally and permanently disabled
arises.

• The duty of the company-designated physician to issue a final and definitive assessment of the
seafarer's disability within the prescribed periods is imperative. His failure to do so will render his
findings nugatory and transform the disability suffered by the seafarer to one that is permanent
and total.

• For a disability to be compensable, two elements must concur: (1) the injury or illness must be
work-related; and (2) the work-related injury or illness must have existed during the term of
the seafarer's employment contract. Cardio-vascular diseases are explicitly listed as
occupational diseases when the heart disease was known to have been present during employment
and there must be proof that an acute exacerbation was clearly precipitated by the unusual strain
by reasons of the nature of his work. In this case, there was no proof presented that such illness
subsisted prior to the expiration of his employment contract or even up to the day of his
repatriation.

• Section 20(B)(3) of the POEA-SEC requires that, after medical repatriation, the company-
designated physician must assess the seafarer’s fitness to work or the degree of his disability.
Thereafter, the seafarer may choose his own doctor to dispute the findings of the company-
designated physician. If the findings of the company-designated physician and the seafarer’s
doctor of choice are conflicting, the matter is then referred to a third doctor, whose findings
shall be binding on both parties. In this regard, jurisprudence is likewise settled that non-
referral to a third doctor, whose decision shall be considered final and binding, constitutes a
breach of the POEA-SEC and the assessment of the company-designated physician shall prevail.

• In case there is a conflict between the medical findings of the company-designated physician and
the seafarer-appointed physician as to the disability rating of the seafarer, the parties must comply

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with the conflict-resolution procedure mandated under the POEA-SEC. The duty to signify the
intention to resolve the conflict by referral to a third doctor is upon the seafarer as he is the
one contesting the findings of the company-designated physician.

• The general rule is that Section 20(A) of the POEA-SEC is irrelevant if the seafarer did not suffer
from an illness or injury during the term of his contract. Salenga did not suffer any illness while
he was on board the ship, and in fact, he failed to present any proof that his illnesses manifested
while he was on board the vessel. Hence, Section 20(A) of the POEA-SEC does not apply to him.

• A final, conclusive, and definite medical assessment must clearly state whether the seafarer is fit
to work or the exact disability rating, or whether such illness is work-related, and without any
further condition or treatment. It should no longer require any further action on the part of the
company-designated physician and it is issued by the company-designated physician after he or
she has exhausted all possible treatment options within the periods allowed by law.

• Despite the issuance of a purportedly "final disability grading" in the Disability Report,
Razonable was still required to return almost a month later for "re-evaluation with results" in the
Medical Report issued on the same day. Taking these two documents together, the medical
assessment was clearly not a final one because it still required further action on the part of the
company-designated physicians. Without such valid final and definitive assessment from the
company-designated physicians, the law already steps in to consider the seafarer's disability as
total and permanent. Hence, Maersk is ordered to pay Razonable his total and permanent
disability benefits.

• In order for the beneficiaries of a seafarer to be entitled to death compensation from the employer,
it must be proven that the death of the seafarer (1) is work-related; and (2) occurred during
the term of his contract. The seafarer shall also submit himself to a post-employment medical
examination by a company-designated physician within three working days upon his return
except when he is physically incapacitated to do so. In this case, Jonathan was repatriated on
September 11, 2009 due to the completion of his contract; he died on November 11, 2009, or 2
months after his repatriation. Petitioner failed to prove by substantial evidence the causal
connection between Jonathan's death and the nature of his work. Moreover, he did not submit
himself to a post-employment medical examination by a company-designated physician upon his
return.

2. LABOR-ONLY CONTRACTING; LEGITIMATE LABOR CONTRACTOR

• One of the factors in determining whether there is labor-only contracting is the nature of the
employee's job, i.e., whether the work he performs is necessary and desirable to the business of
the principal. In this particular case, it was established that Daguinod was assigned as a counter
crew/cashier in Jollibee Alphaland. Daguinod was assigned to perform cash control activities
which entails gathering of orders and assembling food on the tray for dine-in customers or for
take-out. As cashier, Daguinod was also tasked to receive payments and give change. These tasks
are undoubtedly necessary and desirable to the business of a fast food restaurant such as Jollibee.
The service of food to customers is the main line of business of any restaurant. It is not merely a
non-core or peripheral activity as Generation One and Southgate claim. It is in the interest of
Southgate, franchise owner of Jollibee, that its customers be served food in a timely manner.
Respondents' position that the gathering of orders and service of food to customers are "non-core"
functions or peripheral activities is simply preposterous and is contrary to the basic business
model of a fast food restaurant. These circumstances lead to no other conclusion than that
Daguinod was a regular employee of Southgate and that Generation One was a mere agent of
Southgate.

• The ownership of substantial capital in the form of tools, equipment, machineries, work premises,
and other properties, by the contractor is another factor in establishing whether it is

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legitimate. Here, Generation One submitted only one ITR for the year ended December 2010
showing a gross income of P9,564,065.00. The submission of one ITR for one fiscal year can
hardly be considered substantial evidence to prove that the cooperative has substantial capital.
Furthermore, the Court cannot give credence to the ITR as it does not appear to have been
submitted to the Bureau of Internal Revenue.

• Registration with DOLE as an independent contractor does not automatically vest it with the
status of a legitimate labor contractor, it is merely presumptive proof. In the instant case, the
totality of circumstances reveals that Generation One, despite its DOLE registration, is not a
legitimate labor contractor.

3. EMPLOYER

• Haveria was reported by the SSSEA as an employee, and he claims coverage as a compulsory
member of the SSS. As correctly held by the SSC and CA, the SSSEA, a labor organization,
cannot be considered an employer under the law. The Labor Code expressly excludes labor
organizations from the definition of an employer, except when they directly hire employees to
render services for the union or association. Aside from his bare allegation that he was an
employee of the SSSEA, Haveria did not present any other fact to substantiate his claim of
employment with the SSSEA. He did not state his day-to-day duties or responsibilities and work
hours; he did not even present proof of employment such as pay slips and contract of
employment. Thus, the SSSEA was not an employer and Haveria was not its employee, but
merely a member or officer thereof.

4. SOCIAL SECURITY SYSTEM

• As a government employee, Haveria would have been qualified for voluntary coverage under
Section 9 (b) of R.A. No. 1161, had he registered as a voluntary member while working with the
SSS. However, he was registered as a compulsory member on the mistaken claim that he was an
employee of a private entity, the SSSEA. Consequently, his compulsory coverage while
supposedly employed with the SSSEA was erroneous. Thus, as correctly found by the SSC and
affirmed by the CA, Haveria's compulsory coverage with the SSS validly started only in 1989
when he was reported as an employee of private employer, Stop Light Diners until his retirement
with his second private employer, First Ivory Pharma Trade, Inc. in 1997.

• On the issue of estoppel, the Court holds that the principle cannot be invoked against the SSS. In
the present case, it was the SSSEA and Haveria who made the incorrect representation to the SSS
that an employment relationship existed between them. As a result of said representation, the SSS
erroneously registered Haveria as a compulsory member. Thus, Haveria cannot claim estoppel
against the SSS as the latter merely relied on the former's representation.

5. EMPLOYER-EMPLOYEE RELATIONSHIP

• It is undisputed that petitioner rendered butchering services at Kalookan Slaughterhouse. The LA

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found that petitioner was engaged by Kalookan Slaughterhouse itself since petitioner submitted
log sheets and gate passes. The totality of petitioner's evidence and the admissions of Kalookan
Slaughterhouse convinces the Court that petitioner was indeed an employee of Kalookan
Slaughterhouse. Petitioner was able to present an ID, gate passes, log sheets, and a trip ticket.
Kalookan Slaughterhouse even admitted through De Guzman that uniforms were given to all
personnel, including petitioner. These are sufficient to prove that petitioner was engaged by
Kalookan Slaughterhouse. xxx It appears on record that De Guzman, who is also an employee of
Kalookan Slaughterhouse, was the one who exercised control over petitioner's means and
methods as he reprimanded petitioner for his failure to properly store his butchering knives,
coming to Kalookan Slaughterhouse with dirty clothes, reporting for work drunk, and not having
an I.D. before going to the slaughterhouse. All the foregoing show that Kalookan Slaughterhouse,

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through Tablit, was the one who engaged petitioner, paid for his salaries, and in effect had the
power to dismiss him. Further, Kalookan Slaughterhouse exercised control over petitioner's
conduct through De Guzman. To the mind of the Court, Kalookan Slaughterhouse was petitioner's
employer and it exercised its rights as an employer through Tablit and De Guzman, who were its
employees.

6. ILLEGAL DISMISSAL

• In this case, there was non-compliance with procedural due process as the NTEs did not contain
the specific information required under the law. Moreover, Daguinod was not given a reasonable
opportunity to submit his written explanation as he was ordered to immediately answer the NTEs.

xxx

It was reasonable for Daguinod to believe that he had been dismissed from service due to the
events of April 10, 2011. On the said date, Daguinod was accused of theft after having an overage
in the cash register of P106.00. He was served two NTEs which he had to answer on the same
day. He was not given time to prepare a proper defense or was not informed of his right to seek
representation and counsel. He was, to the contrary, immediately arrested and imprisoned without
warrant from April 10 to April 13, 2011. Thereafter, when he called Generation One to inquire
about the status of his employment and his back pay, he was told by Generation One's Resource
Area Coordinator, that his employment was terminated effective May 13, 2011. Thus, Daguinod
cannot be faulted for believing that his employment had been terminated. The haphazard way in
which the accusations were thrown against Daguinod and how the investigation was conducted
shows bad faith on the part of Southgate and Generation One. Daguinod spent three days in jail
for an alleged attempted theft of P106.00. There was a pre-judgment of guilt without a proper
investigation. Thus, Daguinod was constructively dismissed effective on April 10, 2011.

xxx

Undeniably, reinstatement is no longer feasible due to the strained relations of the parties and
considering as well the length of time that has passed since the filing of this case. Thus,
separation pay is awarded in lieu thereof. Daguinod is likewise entitled to moral and exemplary
damages as his dismissal was attended with bad faith. In the instant case, Southgate and
Generation One clearly acted in bad faith. The respondents created a subterfuge of legitimate
labor contracting to avoid the regularization of Daguinod. More significantly, respondents
haphazardly accused Daguinod of theft without sufficient proof which resulted in his
incarceration for three days. The Court also awards Daguinod attorney's fees of 10% of the total
monetary award. Daguinod was compelled to litigate to enforce his rights which had been
unjustly and blatantly violated by Generation One and Southgate, thus, he is entitled to attorney's
fees.

• Anent the procedural aspect, the employer must comply with the two-notice rule. The employer
must serve the erring employee a first notice which details the ground/s for termination, giving
the employee a reasonable opportunity to explain his side. The second notice pertains to the
written notice of termination indicating that upon due consideration of all circumstances, the
employer has decided to dismiss the employee. Here, Pardillo was served with a Notice to
Explain (NTE) that charged her only with tardiness on two dates. However, the notice of
termination charged her with additional and more serious grounds of loss of trust and confidence,
habitual tardiness, texting insulting words and uttering offensive words to Dr. Bandojo, and
threatening to kill Dr. Bandojo and her family. The additional grounds cited in the notice of
termination which were not mentioned in the NTE violated Pardillo's right to be informed of the
administrative charges against her. The NTE and the notice of termination did not state the
specific acts that constituted a breach of company policies resulting in loss of trust and
confidence.

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• In illegal dismissal cases, before the employer must bear the burden of proving that the dismissal
was legal, the employee must first establish by substantial evidence the fact of his dismissal from
service. Obviously, if there is no dismissal, then there can be no question as to its legality or
illegality. Here, the Labor Arbiter, NLRC and CA unanimously found that Rodriguez failed to
discharge her burden of proving, with substantial evidence, her allegation that she was dismissed
by SSI, constructively or otherwise. As the Labor Arbiter likewise found, it appears that she
stopped reporting to work and successively filed applications for leave of absence (which were
not approved) because she did not want to report to the newly appointed EA.

• De Leon's dismissal was anchored on his violation of PTC's Code of Discipline. The Court's
reading of the relevant rule from PTC's Code of Conduct is that it is not vague, nor is it
unreasonable. The fact that it did not specify the origin of the gift or the purpose for which the
gift was given did not automatically mean that the rule was vague. It simply means that this "no-
gift" policy of PTC was absolute, that is, the origin or the purpose of the gift was irrelevant. In
simple terms, the mere act of offering or receiving a gift constitutes a violation. The rule is
likewise not unreasonable. Indeed, in light of the strict provisions of the POEA Rules, it was
reasonable for PTC to protect itself by crafting its Code of Discipline that imposes the supreme
penalty of dismissal for those who commit acts that, if construed to be PTC's, would merit the
cancellation of its license. Thus, as it is recognized that company policies and regulations, unless
shown to be grossly oppressive or contrary to law, are generally valid and binding on the parties
and must be complied with until finally revised or amended, the dismissal of de Leon — hinged
on a rule that provides for dismissal even on the first instance of violation — should therefore be
upheld. PTC was well within its management prerogative in terminating de Leon's employment
upon a finding of violation of its company rules.

7. REDUNDANCY

• A redundant position is one rendered superfluous by any number of factors, such as over-hiring of
workers, decreased volume of business, dropping of a particular product line previously
manufactured by the company, or phasing out of a service activity formerly undertaken by the
enterprise. For a valid implementation of a redundancy program, the employer must comply with
the following requisites: (1) written notice served on both the employee and the DOLE at least
one month prior to the intended date of termination; (2) payment of separation pay equivalent to
at least one month pay or at least one-month pay for every year of service, whichever is higher, as
reasonable criteria in ascertaining what positions are to be declared redundant. Among the
accepted criteria in implementing a redundancy program, are (1) preferred status; (2) efficiency;
and (3) seniority. Necessarily, the position of one of the two RSMs will become an excess of what
is reasonably required by Que’s company. Hence, the employment of the excess RSM has to be
terminated on the ground of redundancy, subject to the payment of separation pay as mandated by
law. Therefore, Que was validly terminated on the ground of redundancy.

8. DOCTRINE OF STRAINED RELATIONS

• In the present case, Rodriguez prays for the payment of separation pay in lieu of reinstatement,
evidently relying on the alleged strained relations between her and SSI. Under the doctrine of
strained relations, such payment of separation pay is considered an acceptable alternative to
reinstatement when the latter option is no longer desirable or viable. The doctrine presupposes
that the employee was dismissed. This factor is clearly absent in Rodriguez's case. Besides, the
doctrine of strained relations cannot be applied indiscriminately since every labor dispute almost
invariably results in "strained relations;" otherwise, reinstatement can never be possible simply
because some hostility is engendered between the parties as a result of their disagreement. That is
human nature. Strained relations must be demonstrated as a fact. The doctrine should not be used
recklessly or loosely applied, nor be based on impression alone. In the present case, there is no
compelling evidence to support the conclusion that the parties' relationship has gone so sour so as

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to render reinstatement impracticable. This being the case, SSI must be ordered to reinstate
Rodriguez to her former position without payment of backwages. If Rodriguez voluntarily
chooses not to return to work, she must then be considered as having resigned from employment.

9. PAYMENT OF BACKWAGES

• As regards the prayer for payment of backwages, the same must likewise be denied because there
was no dismissal. Article 279 provides for the payment of full backwages, among others, to
unjustly dismissed employees. The grant of backwages allows the employee to recover from the
employer that which he had lost by way of wages as a result of his dismissal. Moreover, the
Court has held that where the employee's failure to work was occasioned neither by his
abandonment nor by a termination, the burden of economic loss is not rightfully shifted to the
employer. Each party must bear his own loss.

10. ABANDONMENT

• Abandonment has been recognized by jurisprudence as a form of, or akin to, neglect of duty. It
requires the concurrence of two elements: 1) failure to report for work or absence without valid or
justifiable reason; and 2) a clear intention to sever the employer-employee relationship as
manifested by some overt acts. Here, respondents failed to prove that Rodriguez abandoned her
work. To be specific, they failed to prove the second element of abandonment — that she had
intent to abandon. Rodriguez wrote in the attached exchange of e-mail that she was surprised that
Capaque said to SSI's clients that she abandoned her work. Also, the continued filing of
applications for leave of absence by Rodriguez even without awaiting SSI's approval indicate that
she did not intend to leave her work in SSI for good.

11. FLOATING STATUS

• The Court finds that petitioner failed to prove that the termination of the contract with Meralco
resulted in a bona fide suspension of its business operations so as to validly place respondent in a
floating status. The suspension of employment under Article 301 of the Labor Code is only
temporary and should not exceed six months. Jurisprudence has set that the employer should
notify the Department of Labor and Employment (DOLE) and the affected employee, at least one
month prior to the intended date of suspension of business operations. An employer must also
prove the existence of a clear and compelling economic reason for the temporary shutdown
of its business or undertaking and that there were no available posts to which the affected
employee could be assigned. Here, the totality of the foregoing circumstances shows that
petitioner's acts of not informing respondent and the DOLE of the suspension of its operations,
failing to prove the bona fide suspension of its business or undertaking, ignoring respondent's
follow-ups on a new assignment, and belated sending of letters/notices which were returned to it,
were done to make it appear as if respondent had not been dismissed. These acts, however, clearly
amounted to a dismissal, for which petitioner is liable.

• At any rate, the letters dated May 14, 2014 and May 28, 2014 sent by Seventh Fleet to Loque are
in the nature of general return to work orders. Such general return to work orders will not absolve
Seventh Fleet since jurisprudence requires not only that the employee be recalled to the agency's
office, but that the employee be deployed to a specific client before the lapse of six months.
Respondent should have deployed petitioner to a specific client within six (6) months from his
last assignment. The correspondences allegedly sent to petitioner merely required him to explain
why he did not report to work. He was never assigned to a particular client. Thus, even if
petitioner actually received the letters of respondent, he was still constructively dismissed
because none of these letters indicated his reassignment to another client. .

12. UNFAIR LABOR PRACTICE

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• The union's charge of ULP against respondent company cannot be upheld. The union's mere
allegation of ULP is not evidence, it must be supported by substantial evidence. Thus, the
consequent dismissal of twenty seven (27) regular members of the complainant's union due to
redundancy is not per se an act of unfair labor practice amounting to union busting. For while, the
number of union membership was diminished due to the termination of herein union members, it
cannot safely be said that respondent company acted in bad faith in terminating their services
because the termination was not without a valid reason. xxx There was no showing that the
redundancy program was motivated by ill will, bad faith or malice, or that it was conceived for
the purpose of interfering with the employees' right to self-organize.

13. STRIKES

• In a strike grounded on unfair labor practice, the following are the requirements: (1) the strike
may be declared by the duly certified bargaining agent or legitimate labor organization; (2) the
conduct of the strike vote in accordance with the notice and reportorial requirements to the
NCMB and subject to the seven-day waiting period; (3) notice of strike filed with the NCMB and
copy furnished to the employer, subject to the 15-day cooling-off period. In cases of union
busting, the 15-day cooling-off period shall not apply.

• The union conducted an illegal sit-down strike on February 16, 1996. The consistent and
corroborative sworn declarations of Bigg's witnesses constitute substantial evidence to prove that
the union members committed a sit-down strike on February 16, 1996. The union did not file the
requisite Notice of Strike and failed to observe the cooling-off period. In an effort to legitimize
the strike on February 16, 1996, the union filed a Notice of Strike on the same day. This cannot be
considered as compliance with the requirement, as the cooling-off period is mandatory. Moreover,
the union failed to prove with substantial evidence that Bigg's was guilty of unfair labor practice
to allow the union, a non-certified bargaining agent, to initiate the strike. Likewise, the union
failed to prove that there was union busting to exempt compliance with the cooling-off period.

• The strike on March 5, 1996 was illegal despite the compliance with the procedural requirements
of a valid strike. It was established that the striking union members committed acts of violence,
aggression, vandalism, and blockage of the free passage to and from Bigg's premises. The
dismissal of union president is valid. For union members, what is required is that they knowing
participated in the commission of illegal acts during the strike for there to be sufficient ground for
termination of employment. For union officers, however, it suffices that they knowingly
participated in an illegal strike. It must be noted that Boncacas not only knowingly participated
but was the one who principally organized two illegal strikes on February 16, 1996 and March 5,
1996. Thus, the dismissal of Boncacas and the other union officers after the illegal strike on
February 16, 1996 as well as the March 5, 1996 strike was valid. However, as to the union
members who did not participate in any prohibited act during the strikes, their dismissal was
invalid.

14. ASSUMPTION POWER OF THE SECRETARY OF LABOR

• When the Secretary exercises these powers, he is granted "great breadth of discretion" in order to
find a solution to a labor dispute. The most obvious of these powers is the automatic enjoining of
an impending strike or lockout or the lifting thereof if one has already taken place. Assumption of
jurisdiction over a labor dispute always co-exists with an order for workers to return to work
immediately and for employers to readmit all workers under the same terms and conditions
prevailing before the strike or lockout.

• Of important consideration in this case is the return-to-work order, which the Court
characterized as "interlocutory in nature, and is merely meant to maintain status quo while the
main issue is being threshed out in the proper forum.” The status quo is simply the status of
the employment of the employees the day before the occurrence of the strike or lockout. Based on

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the foregoing, from the date the DOLE Secretary assumes jurisdiction over a dispute until its
resolution, the parties have the obligation to maintain the status quo while the main issue is being
threshed out in the proper forum - which could be with the DOLE Secretary or with the NLRC.
This is to avoid any disruption to the economy and to the industry of the employer - as this is the
potential effect of a strike or lockout in an industry indispensable to the national interest - while
the DOLE Secretary or the NLRC is resolving the dispute.

• Since the union voted for the conduct of a strike on June 11, 2009, when the DOLE Secretary
issued the return-to-work order dated June 23, 2009, this means that the status quo was the
employment status of the employees on June 10, 2009. This status quo should have been
maintained until the NLRC resolved the dispute in its Resolution dated March 16, 2010, where
the NLRC ruled that CCBPI did not commit unfair labor practice and that the redundancy
program was valid. This Resolution then took the place of the return-to-work order of the DOLE
Secretary and CCBPI no longer had the duty to maintain the status quo after March 16, 2010.

15. PRINCIPLE OF NON-DIMINUTION OF BENEFITS

• Article 100 of the Labor Code expressly prohibits the elimination or reduction of benefits
received by employees. However, the basis for the grant of said benefit must be shown through an
express policy, written contract, or an unwritten policy that has ripened into a company practice.
To be considered a practice, it must be consistently and deliberately made by the employer over a
significant period of time. With regard to the length of time the company practice should have
been exercised to constitute voluntary employer practice which cannot be unilaterally withdrawn
by the employer, jurisprudence has not laid down any hard and fast rule. xxx The common
denominator in these cases appears to be the regularity and deliberateness of the grant of benefits
over a significant period of time. In the case at hand, petitioner was able to prove the existence of
an established company practice of granting early retirement to its employees who have rendered
at least 10 years of service, regardless of age, with substantial evidence. Respondents merely
denied that AMA had any existing early retirement policy and the grant of Catolico and
Creencia's requests were isolated cases. However, respondents did not submit controverting
evidence to refute Catolico and Creencia's statements in their affidavits as to the grant of early
retirement benefits to its other employees.

16. RETIREMENT BENEFITS

• Article 302 (formerly Article 287) of the Labor Code provides for the voluntary retirement age of
60 years old and mandatory retirement age of 65 years old. In addition to the age requirements,
the employee must have served at least five years in the company. The statutory retirement
benefit is pegged at one-half month salary for every year of service or a fraction thereof. The
employer however, is free to grant other retirement benefits and impose different age or service
requirements, provided that the benefits shall not be lesser than those provided in Article 302.

17. APPEAL BOND

• Article 223 of the Labor Code requires the posting of a cash or surety bond when the judgment
appealed from involves a monetary award. Indeed, as the CA ruled, the posting of the bond is
"an indispensable requisite for the perfection of an appeal by the employer.” As against this rule,
the Court has recognized exceptional circumstances where it relaxed the requirement for an
appeal bond. Here, the Court deems the existence of the insolvency proceedings as an exceptional
circumstance to warrant the liberal application of the rules requiring an appeal bond. The failure
to file an appeal bond did not contradict the need to ensure that respondent, if his claim is deemed
valid, will receive the money judgment..

18. WORKER’S PREFERENCE IN CASE OF BANKRUPTCY

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• What Article 110 means in the context of an insolvent employer is "that during bankruptcy,
insolvency or liquidation proceedings involving the existing properties of the employer, the
employees have the advantage of having their unpaid wages satisfied ahead of certain claims
which may be proved therein.".

19. RULE 65

• The only remedy available to a party aggrieved in a decision of the NLRC is a petition
for certiorari before the CA, and for which the petitioner must show that such remedy is the only
plain, speedy, and adequate remedy. As shown above, Abergos's failure to file a motion for
reconsideration meant that when he filed his petition for certiorari, it was not the only plain,
speedy, and adequate remedy available. Having failed to perfect the remedy available to him, the
Court is constrained to reinstate the NLRC Resolution dated May 24, 2017, which, following the
2011 NLRC Rules as quoted above, should have already attained finality and executed, as there is
no indication in the records that the CA had issued any injunction.

“When the time is right, the Lord will make it happen.”