Training and Convention Division University of the Philippines College of Law SUGGESTED ANSWERS TO THE 2022 MOCK BAR EXAMINATIONS IN. LABOR LAW (Cycle 2) 1 Jocelyn was hired by BDO as a bank teller in 2018. She did well in her job, but in July 2021 she had a disagreement with her Branch Manager because of certain practices by the Branch Manager which in the view of Jocelyn is prejudicial to the Bank. She reported the matter to the Human Resource Director of the Bank. The Branch Manager in return made inquiries on the previous employment records of Jocelyn and learned that she used to work for a rural bank in Pampanga where she reportedly was asked to resign because of certain financial anomalies that involved her. The Bank Manager further found out also that Jocelyn did not mention her previous employment with the rural bank in her application with BDO. The Code of Conduct of BDO penalizes with dismissal the act of "knowingly giving false or misleading information in applications for employment as a result of which employment is secured”, The Bank Manager then asked the Human Resource Director to initiate disciplinary action against Jocelyn because of her non-disclosure of this matter in her application form, During the administrative investigation, Jocelyn explained that her reported involvement in the financial anomaly is based purely on rumors and that it is not tue. In fact, her former employer allowed her to resign and did not file any case against her. She further claimed that she has no intention of misleading BDO, and the non-disclosure of the details of her previous employment was just a result of memory lapses on her part. The Human Resource Director found Jocelyn’s explanation insufficient and accordingly dismissed her. Jocelyn filed a case for illegal dismissal. a. What labor law principles should be invoked by the Human Resource Director to support the validity of Jocelyn’s dismissal? (5 points) b. If you were the lawyer for Jocelyn, how will you argue that her dismissal is not valid? (6 points) ANSWER: a. The Human Resource Director can invoke the principle that it is an inherent prerogative of the employer to promulgate rules and regulations that will govern the conduct of its employees, and these rules are valid and binding on the employees for as long as they are reasonable, prepared in good faith, and are designed to protect the legitimate interests of the employer. Information that are required to be stated in the employment application form of an employee are clearly designed to assist the employer in making its decision on whether to hire an applicant or not. The withholding, of such important and relevant information by Jocelyn had deprived the employer of a fair opportunity to make an informed judgment before accepting her application. This withholding of information is akin to an act of misleading the Bank into hiring her for the position of teller. b. Jocelyn did not commit any violation asshe did not knowingly give false or misleading information in her application form, which is the act being penalized by the Rules of the bank. There is a clear doubt as to whether non-disclosure of information which is not asked in the application form would be equivalent to knowingly giving false or misleading information. Itis a settled rule that doubts in UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 1 of 13the interpretation of labor legislation and contracts, including personnel policies, should be resolved in favor of labor. This rule clearly applies to the present case, The rules of the Bank penalize an employee for doing, a positive act, ie,, knowingly giving a false or misleading information. Tt does not cover situations where an applicant failed to disclose certain facts concerning her previous employment. (Celis vs Bank of Makati GR No 250776, June 15, 2022) u Since 2018, Karen was employed as a new account officer of the Metrobank Salcedo Branch. In 2021, Metrobank adopted a policy that regulates marriages between employees of the Bank. The Policy provides that: “Effective January 1, 2021, when two employees working for the Bank are subsequently married, one of the spouses must resign from his/her job immediately after the marriage. This Policy shall not affect co-employees of the Bank who are already married to each other prior to January 1, 2021." In the memorandum that accompanied the circulation of this Policy, the Bank explained that the policy was issued pursuant to the anti-nepotism advocacy of the Bank; to maintain the efficiency of employees; and_ to prevent the possibility of employees who are intimately related fom conniving or acting in concert against the interest of the Bank. In December 2021, Karen married Jorge who also worked as a bank teller in the Salcedo Branch of the Bank. A few days after the wedding, the Human Resource Manager of the bank advised Karen that she has to resign pursuant to the Policy. Karen however is not willing to resign because according to her she has already been an employee of the Bank long before the policy was adopted and that her marriage to Jorge does not pose any threat to the security of the Bank nor does it affect their efficiency in the performance of their assigned tasks. Considering, the adamant objection of Karen to the advice of the HR Manager, the latter initiated a disciplinary action against Karen for violation of the policy, and eventually terminated her from her job. Karen sued for illegal dismissal. a. You were engaged as Karen's counsel, What legal arguments are you going to put forward to support the illegal dismissal claim? Elaborate. (5 points) b. You are the general counsel of the Bank. How will you defend the validity of the policy and the dismissal of Karen based on this policy? Elaborate. (5 points) ANSWER: a. The anti-marriage policy of the Bank is discriminatory and therefore invalid. Likewise, the policy is contrary to the protection that that the law extends to female employees, particularly the protection against acts that led to the dismissal, discharge or discrimination or prejudice of a female employee merely by reason of her marriage (Article 134 of the Labor Code), While it is true that the policy speaks of one of the spouses, and not necessarily the wife, here the HI Manager singled out Karen for violation of the policy, thus revealing that the policy is clearly directed against the female employee, Moreover, the bank had not shown in what way the marriage of two employees working, for the bank would be prejudicial to the interest of the Bank. The adoption by the Bank of the no- spouse employment policy in order to enforce its anti-nepotism advocacy cannot prevail over the rights of employees to security of tenure which is protected by the Constitution and the law. Such policy must be shown to be reasonably related to the essential operation of the job involved and there must be factual basis for concluding that the persons covered by the policy would then be unable to properly perform their duties and responsibilities. No such reasonable connection was shown by UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 2 of 13the Bank and there is no factual basis for concluding that Karen and her husband cannot anymore perform their functions properly simply because they are now married to one another. b. The adoption by the bank of the no intermarriage policy is a legitimate exercise of its management prerogative of laying down the qualifications for certain employment positions in the Bank. This is known as the bonafide occupation qualification exception and is not intended to discriminate against anyone. The policy does not violate the general prohibition against marriage as mandated in the Labor Code, because an employee can still marry. However, what is proscribed is marriage to a co- employee because then such act would contradict a legitimate interest of the employer which is the elimination of nepotism within the institution and the creation of working environment that is conducive to efficiency and fair treatment among co-employees. This will not be achieved if there are employees in the workplace who are also married to each other. Hence, one of the spouses (in this case Karen) has to leave the employ of the Bank. (Dela Cruz Cagampan vs One Network Bank GR No. 217414, June 22, 2022) a Angela works as Telemarketer for Teleperformance Inc, a BPO company based in Taguig. She is martied and is six months pregnant. Teleperformance imposed a quota of 20 consummated sales per day onits telemarketers. For the month of June 2021, Angela was able to conclude only 10 sales a day and her attention was called by her supervising officer. On August 1, she was advised by her supervising officer that if she cannot attain the quota within the month of August 2021, she will be subjected to disciplinary action which may include dismissal from service. Angela pleaded with her supervising officer to give her some leniency considering her pregnancy which somehow affects her efficiency. The supervising officer advised her that the quota is uniformly applied to all telemarketers regardless of their physical condition, and that if she cannot perform according to the standards of the Company, it may be better if she just resigns from her job. Angela thought it over and realizing that it is almost impossible for her to achieve the quota in August, considering her pregnancy, and worrying, about the adverse effect on the health of her child if she pushes herself to work harder, she decided to resign as suggested by her superior. She prepared a resignation letter which provides that “in view of the difficulty and almost impossibility of my being able to meet the quota for the month of August, which may result in the termination of my employment as advised by my supervising, officer, and considering the adverse effect on the health of my child if T overwork myself just to achieve the quota, I am tendering my resignation effective August 15, 2021. In January 2022, after she had delivered her child, Angela wanted to go back to her work with Teleperformance. The manager however refused to accept her because she had already resigned in August 2021. Angela then decided to file a constructive dismissal case against Teleperformance, claiming that her resignation in August 2021 was forced. a. Was Angela constructively dismissed? Explain your answer. ( points) b.Inconstructive dismissal cases, such asa claim of forced resignation, who has the burden of proving, the voluntariness or involuntariness of the resignation? Explain. ( points) ANSWER: a. Angela wasconstructively dismissed. Her resignation is not voluntary but forced by the conditions of her employment that were imposed upon her by the employer. From the facts of the case, it is clear UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 3 of 13that when Angela submitted her resignation, she did not have definite intention of relinquishing her post or dissociating herself from her job. The fact that a few months after she submitted her resignation letter, she sought back to return to her job clearly shows that she had no intention of cutting her ties with her employer. The resignation was clearly triggered by the harsh, hostile and unfavorable condition prevailing at the time that she submitted her resignation letter, coupled with the threat given to her by her supervisor that she could be subjected to disciplinary action, including, dismissal, if she fails to meet the quota which was impossible for her achieve at the time considering, her pregnancy. 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. In ‘voluntary resignation, the employee is compelled by personal reason(s) to disassociate himself from employment. It is done with the intention of relinquishing an office, accompanied by the act of abandonment. These conditions are absent in this case, b. There are two lines of cases decided by the Supreme on this matter, but the majority of the rulings of the Supreme Court point to the rule that if an employee claims that he was forced to resign, and therefore constructively dismissed, the burden is imposed on the employer to prove that the resignation of the employee was voluntary and not forced. ‘The employer cannot just rely on the resignation letter of the employee as proof of the validity of the cessation of the employment relationship. Additional evidence showing the voluntary execution and submission of the resignation letter must be submitted by the employer to prove that there is no constructive dismissal. Vv ‘The CBA between Metropolitan Hospital and the Union of its. rank-and-file employees provides for a vacation leave benefits with pay of 15 days per year. The CBA further provides that an employee must apply for the vacation leave at least one week before the intended leave. It further provides that any unused vacation leave credits at the end of year is converted to cash. In 2021, the new HR manager of the Metropolitan Hospital came out with a company policy on the availment and use of vacation leaves. Among others, the policy requires all employees to consume alll their vacation leave credits every year. This is done by requiring the employees to advise management at the start of the year what are the days that the employee will go on vacation so that management can properly schedule the work of the employees so as not to conflict with their leaves. Any vacation leave credit that is not used by the employees during the year is no longer converted to cash, but it is added to their sick leave credits. Sick leaves can be used only during the time that the employee is sick and any unused sick leave credits at the end of the year are forfeited. The Union wants to challenge the validity of this policy. a, What step/s must be taken by the union to challenge the validity of the Policy? (2.5 points) . Is the new Policy of the Hospital valid? Explain your answer (2.5 points) ANSWER: a. Since there is a CBA between the Union and the Metropolitan Hospital in the facts of this case, this, means that there is an existing grievance machinery between the Union and the Hospital. This is so ‘because a grievance machinery is a mandatory provision in a collective bargaining agreement. There being, a grievance machinery, the union should raise the issuance by the Hospital of the questionable new policy as a grievance under the CBA and should go to the process outlined in the grievance procedure for the resolution of this grievance. If the matter is not resolved through the grievance UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 4 of 13process, then the union should insist on the submission of the issue to voluntary arbitration as the last step in the grievance machinery. b. The Hospital's new policy is not valid for being violative of the rule against diminution of an existing benefit. The vacation leave benefits of the employee as provided in the CBA is an existing benefit. Itis.a product of an agreement between the Hospital and the Union and therefore, becomes part and parcel of the terms and conditions of the employment contract of the covered employees. While the Hospital, as part of its prerogative to schedule the work of the employees may also schedule the dates of their vacation leaves, such prerogative to schedule however does not entitle the Hospital to do away with the cash conversion of the unused vacation leave credits. Adding the unused VL credits to the sick leave credits is not the same as cash conversion of the unused leave credits and therefore the Hospital cannot claim substitution of a benefit with an equivalent benefit. v A. Holiday Inn Hotel adds a 10% service charge on all the bills of its customers. The Hotel has an existing union for its rank-and-file employees, and newly certified union for its supervisory employees. The CBA with the rank-and-file union provides that all the service charges collected by the Hotel shall be distributed equally among the rank-and-file employees. During CBA negotiation time, the supervisory union also demanded that the supervisors be given a share in the service charge. Can the Hotel legally refuse to grant this demand by the supervisors? Explain your answer. 25 points) ANSWER: Yes, the Hotel has legal basis for refusing to grant the demand of the newly created union of the supervisors. Under the new service charge law, all service charges collected by the employer must be distributed equally to all covered employees. The definition of covered employees refers only to rank and file employees directly hired by the employer/establishment. Managerial employees are excluded from the benefit, and the law defined managerial employees to include those “who can effectively recommend, using their independent judgment, managerial actions”. This phrase as understood in labor and jurisprudence refers to supervisors. Hence, legally, supervisors are also not entitled to share in the service charge. It would have been different if the supervisors were already receiving a share in the service charge prior to the passage of this law, because if that is the case, they can continue to share in the service charge pursuant to the rule that prohibits the diminution of existing benefits. B.In 2015, Lorenzo operates a restaurant in Makati and charges his customers 10% service charges on top of their bills. The service charge collected is distributed to his employees as follows: 85% goes to the rank-and-file employees, 10% goes to the managerial employees and 5% is retained by him to cover for breakages and losses. ‘The restaurant was patronized by many customers because of the good food, reasonable price and good service. The collected service charges are also substantial, and the employees are happy with their share in the collection. In 2020, Lorenzo decided to expand, and ‘he put up a branch in Cebu. Cebu's operation however is not very profitable and the employees in this Cebu Branch received much less share in the service charge, Can the Cebu employees now demand that they should share also in the service charges generated in Makati because the two UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 5 of 13restaurants are owned by the same owner/employer? How much should be the share of the employees in the service charge? Explain. (2.5 points) ANSWER: The service charge that should be distributed equally among the employees pertains to the collected service charges on a per establishment basis and not on a per employer basis. Hence, the Cebu based employees should share only the total service charges collected by the Cebu Branch of the restaurant. ‘They cannot claim a share from the service charge collected in the Makati branch. By its nature, the basis for the entitlement to share in the service charge is the service contributed by the employee in generating the service charge. By no stretch of reasoning can the Cebu employees claim that the have contributed to the generation of service charges in the Makati Branch. C. Suppose Lorenzo transferred the restaurant manager and the chef from Makati to Cebu to improve the performance of the Cebu restaurant, While in Cebu, these two employees received less service charges than what they used to receive in Makati. Do these employees have the right to demand that their share in the service charge should be at least the same amount that they were receiving in Makati? Explain. (2.5 points) ANSWER: The Manager and the Chef cannot demand that they should continue to receive the same amount of the services charges that they were receiving during the time that they were assigned in Makati. ‘There is no diminution of benefit here since these employees continue to enjoy the benefit of sharing in the service charge. ‘The amount of the service chargeis not a fixed benefit which cannot diminished, for the simple reason that the amount of the service charge is conditional or contingent on the total collection of service charges in the covered establishment. VI The RTWPB for the National Capital Region issued on May 13, 2022, a wage order increasing the minimum wage to PhP570 per day in Metro-Manila. Assuming that in December 2022, the war between Ukraine and Russia had further escalated, resulting in skyrocketing increases in the prices of oil and other basic commodities. For this reason, the Kilusang Mayo Uno, intends to file another Petition for the increase of the minimum wage to PhP750 to address the galloping inflation and the erosion in the purchasing power of the peso. Can the RTWPB entertain this petition? Will this petition prosper? Elaborate on your answer. (2.5 points). ANSWER: As a general rule, the RTWB can issue not more than one wage order per year. However, in the event of extraordinary inflation or substantial erosion in the purchasing power of the peso, RIWPBs, upon petition by concerned parties, may look into ways of alleviating the economic conditions of the workers and this may include another wage order as may be justified by the prevailing circumstances. vil For the years 2015, 2016, 2017, 2018, and 2019, Puyat Steel, a manufacturer of metal products, had been paying the 13th month of its employees equivalent to one full month salary regardless of the number of days that they have rendered work for the Company during the year. In addition, the UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 6 of 13Company includes in the computation of the 13th month the monthly meal allowance of PaP2,000 that the Company provides to the employees since 2015. In 2020, anew HR manager was hired by the Company and when the time for the payment of the 13th month pay came, the HR Manager computed the amount on a pro-rated basis pursuant to the provisions of the 13th month pay law. She also removed from the computation of the 13th month pay the meal allowance because according to her, this allowance is not part of basic pay. Emil and several employees of the Company complained because they received a reduced 13th month pay in 2020. The HR manager explained that she was only correcting a mistake in the computation made by her predecessor, since 13th month is always computed on a pro-rated basis, and that it is based only on the basic pay of the employees. a. Is the HR Manager correct in computing the 13th month pay ona pro-rated basis? (2.5 points) b. Should the meal allowance be considered in the computation of the 13th month pay? Explain your answer. (2.5 points) ANSWER: a. The HR manager is correct in computing the 13th month pay ona pro-rated basis. The 13th month pay law is clear that the 13th month pay of an employee shall be his gross basic salary for the year divided by 12 months, Itis the same as one full month salary. The fact that the employer was paying in the past one full month salary as 13th month pay does not matter because a mistake in the implementation of the law can always be corrected by the employer and such correction of a mistake does not amount to a violation of the rule against non- diminution of an existing benefit. Alternative Answer: The HR manager cannot change the computation of the 13th month pay to a pro- rata basis because the grant by the employer of a 13th month pay equivalent to one full month salary in the past had already ripened into an existing practice which could not anymore be withdrawn without violating the rule against non-diminution of an existing benefit. The employer cannot invoke correction of a mistake because the rule on how the 13th month should be computed is very clearly stated in the rules implementing the 13th month pay law. The possibility of a mistake in interpretation, when the law is very clear is very remote. The employer is fully aware of what the law provides, yet for 5 consecutive years it implemented the 13th month pay law by paying the employees one full month salary. Such grant is clearly intentional despite what the implementing, rules of the 13th month pay law provides and has ripened into a binding practice. The employer therefore is now estopped from claiming that it made a mistake. He cannot any reduce the 13th month pay without violating the prohibition against non-ciminution of an existing benefit. >, Meal allowances are actually fringe benefits and not considered as part of basic salary, unless they have become integrated into the basic pay of the employees. The problem does not state that the meal allowances had been integrated into the basis salary. As fringe benefits, they should not be included in the computation of the 13th month pay Altenuative Answer: The employer cannot anymore remove from the computation of the 13th month pay the meal allowances that the employer has been providing to the employees since 2015. The Supreme Court had ruled that allowances which are regularly and uniformly given to the employees on amonthly basis in a manner that makes them integral part of the basic salary of the employees are considered part of the wages of the employees and should be included in the computation of salary related benefits such as separation pay, and 13th month pay. Besides, the employer has been giving this allowance as part of the 13th month pay since 2015 and such grant over a long period of time has UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 7 of 13already ripened into a binding practice which could no longer be withdrawn without violating the rule against diminution of an existing benefit. Vu Datem Maintenance Company (DMC) is a maintenance service contractor for PLDT. It does repair and replacements of cables, posts and other facilities of PLDT that require maintenance. It assigns 20 workers to PLDT for this purpose. Due the economic crisis, DMC suffered financial reverses and it decided to close its operations. The 20 employees assigned to PLDT were terminated. They demanded separation pay from DMC. DMC however does not have enough fund to pay the separation pay of these employees. Can the employees run after PLDT for their separation benefit? Explain your answer. (2.5 points) ANSWER: Yes. The employees can run after PLDT for their separation benefit. Under the rules implementing the service contracting provisions of the Labor Code, the principal of a service contractor is severally liable to the employees of the service contractor in the event that the latter cannot pay the money claims of the contractor's employees arising from employment. Separation pay is covered by this rule. However, this claim should be limited only to the proportionate separation pay covering the period that the employees are assigned to PLDT, or the duration of the service agreement between PLDT and DMC. Xx Mr. Cruz. is the owner of a flush restaurant in Makati. He employs Lenore, a high school graduate ‘but proficient in math, as a cashier for a fixed monthly salary of PhP20,000. Lenore has been in his employ for five years already. In 2021, Nancy, the niece of Mr. Cruz, graduated from College with a Degree in Business Administration. To give her work experience Mr. Cruz hired Nancy to workalso as Cashier in his restaurant with the same salary as Lenore. Lenore was disappointed because she has been with the restaurant for five years already and is still paid only PhP20,000, whereas Nancy who is just a fresh graduate from college is also paid PhP20,000. Lenore believes that she is a victim of wage distortion, and she went to the NLRC to complain of wage distortion. Will her complaint prosper? Explain (2.5 points) ANSWER: The complaint will not prosper. While the action taken by Mr. Cruz may look unfair to a tenured employee like Lenore, she however cannot complain of wage distortion because this cause of action requires that the grant of salary of the employee that resulted in the elimination or contraction in the gap between the salaries of the two employees must be as a result of a wage order. The elements of wage distortion, such as a wage order, a salary structure providing for different salaries between or among groups of employees, and intentional quantitative difference in salaries, are not present in the problem at hand. x ‘A. Can an employer claim exemption from giving his employees service incentive leave of five days because he already provides them with a sick leave benefit of 15 days per year of service? Please elaborate, (2.5 points) UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 8 of 13B. When is commission considered as a wage? Are commissions included in the computation of separation pay? Are commissions included in the computation of 13th month pay? Please elaborate. 2.5 points) ANSWER: a. No. the employer is still obliged to grant a service incentive leave to his employees because a sick leave benefit is not the same as a service incentive leave, The rules implementing the service incentive law recognize only vacation leave credits of at least 5 days as the equivalent of a service incentive leave, and not sick leave benefits b. A commission will be considered as wage if the grant thereof by the employer is tied up with the performance by the employee of services that resulted in the creation of income upon which the commission is based. The concrete example of this would be the commission paid to a salesman based on the amount sales that he had made during a particular period. Commissions will be included in the computation of the separation pay and 13th month pay if these are commissions that partake of the nature of a wage. If they are not considered as wage, then they cannot be legally mcluded in the computation of separation pay and 13th month pay. XI In order to expand its business and branch network, the Luzon Development Bank negotiated with Zambales Rural Bank for the former to acquire all the branches of Zambales Rural Bank. In order to expedite the acquisition of the asset and branches of Zambales Rural Bank, the parties agreed to enter into a share purchase agreement whereby the shareholders of Zambales Rural Bank sold all their shareholdings to the controlling shareholder of Luzon Development Bank. Luzon Development Bank however does not want to absorb the employees of Zambales Rural Bank so it was made as a condition of the purchase of the shares that Zambales Rural Bank separate all its employees on the ground of cessation of operations, pay them separation pay, and that after the completion of the sale, the employees will then apply with the bank under the new management and ownership of the shareholders of Luzon Development Bank. The new owners and management of the bank will have the sole discretion on whether or not to hire these employees. A number of employees refused to be paid their separation pay and sued Zambales Rural Bank and Luzon Development Bank for illegal dismissal on the ground that the sale of the shareholdings by the stockholders of Zambales Rural Bank is not an authorized cause for termination of employment and that what took place was only a change in ownership and management but not in the person of the employer. Will the illegal dismissal case prosper? Elaborate on your answer. ( points) ANSWER: The illegal dismissal case will prosper. Under the law, an employee can be dismissed from employment only if there is just or authorized cause for the termination of employment. An offer to pay separation pay is not enough. There must be an authorized cause for termination that would trigger the payment of separation pay. A sale of shareholdings by a previous owner of the business is not equivalent to closure of the business that would trigger payment of separation benefits. The sale of corporate shares results only in change in corporate ownership and change in management, ‘but the identity of the Zambales Rural Bank as the employer remains. The rural bank was not UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 9 of 13dissolved by the change in Management hence the employment relation between it and the complaining employees is not severed by reason of change in management, These employees were therefore dismissed without any valid legal ground. Xi Since January 2010, Marcus was employed as a wax maker with Holy Angels Corporation (HAC), a manufacturer of religious articles and materials. It is a non-profit organization. HAC had put up a non-contributory retirement plan for its employees that provides for a retirement benefit of 75% of the employee's monthly salary for every year of service in case of normal retirement. Normal retirement under the Plan is upon reaching 60 years of age or completion of 25 years of service, whichever comes earlier. In 2020, Marcus was dismissed by HAC for dishonesty. He sued HAC for illegal dismissal before the NLRC. The case dragged on for some time, but in December 2021, the Anbiter decided in Marcus's favor and ordered HAC to pay full backwages and separation pay in liew of reinstatement considering the strained relationship between the parties. Marcu’ salary at the time of his dismissal was PhP15,000 per month. HAC decided not to appeal anymore and offered to comply with the award by offering to pay the backwages and the separation pay. Marcus however appealed as he wants to be reinstated. One month after, he changed his mind and withdrew his appeal, and then filed a motion for execution of the decision for the payment of his backwages and ‘his separation pay. At the same time, Marcus demanded that his retirement benefits should be included in the computation of the award because as of January 2022, he was already 60 years old. Is Marcus also entitled to his retirement benefit on top of the hackwages and the separation benefits? Can the labor arbiter include the amount in the execution of the award that was no longer appealed by HAC? Explain your answer. (5 points) ANSWER: Marcus can claim his retirement benefit based on the retirement plan of his employer and at the same time receive backwages and separation pay in lieu of reinstatement from this employer. ‘The retirement benefit is due him by reason of his having meet the condition so the retirement plan (reaching the age of 60 while still employed). ‘The retirement plan serves as an employment contract between him, and the employer and the benefits thereof must be given to him for as long as he meets the conditions provided in the contract. The separation pay on the other hand isalso due him because this amount is ordered by the Labor Arbiter to be paid to him in lieu of his reinstatement. ‘The basis of the separation pay is the Labor Code and the order of the Labor Arbiter, which is different from the retirement benefit that should be paid to Marcus, the basis of which is the contract (the retirement plan). In the absence of a provision in the retirement plan that prohibits the payment of dual benefits to Marcus by the employer, both amounts (separation pay and retirement benefit) can therefore be recovered by Marcus. XII A. Concentrix Corporation and E-telecare Services Inc entered into a statutory merger, with Concentrix as the surviving corporation, E-telecare was dissolved, as it was the absorbed corporation. Under the merger agreement, Concentrix is required to absorb all the employees of Etelecare. Some Eielecare employees however does not want to continue working for Concentrix as the surviving, UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 10 of 13Company, and they demanded that they should be paid separation pay instead. Concentzix is not willing to pay the separation pay because the employees remained to be employed, and if they do not ‘want to work for Concentrix then they can resign, and under the law a resigning employee is not entitled to separation pay. Are the employees legally entitled to separation pay? (2.5 points) ANSWER: The employees are not entitled to separation pay because they have not lost their employment by reason of the merger. Under the law, in case of a merger the surviving company (in this case Concentrix) shall continue to honor the employment contracts of the employees of Etelecare. In other words, no severance of employment took place even if Etelecare is dissolved by reason of the merger with Concentrix. The latter steps into the shoes of Etelecare and legally becomes the employer of the former Etelecare employees. There being, no severance of employment, there is no basis for the payment of separation pay. If the employees do not like to work under Concentrix and subsequently resigned, the severance of employment was caused by the act of resignation and under the law no separation is due to a resigning employee. Alternative Answer: The employees are entitled to separation pay. The merger resulted in the dissolution of Etelecare, the employer of these employees prior to the merger. Dissolution is similar to closure of business which entitles the affected employees to separation pay. The fact that Concentrix as the surviving, entity has agreed to continue the employment relationship with the former etelecare employees, does not mean that the employees are bound to continue working with Concentrix as the surviving entity. Employment contracts are personal in nature and therefore cannot be treated in the same manner as physical asset of the of the dissolved company. The employees have a choice whether to remain employed under Concentrix as the successor employer or be separated from employment because their former employer had already been dissolved. B. Suppose at the time of the merger, Concentrix has an existing CBA with its employees which provides for a union security clause requiring new employees to join the union as a condition for continued employment. Etelecare on the other hand is unorganized. After the merger, the union in Concentrix demanded that the absorbed employees be required to join the Union, otherwise they shall be deemed to have lost their employment. Concentrix management refused the demand claiming that the union security clause applies only to new employees and not to absorbed employees. a. Ismanagement's position, correct? Explain. (2.5 points). b. Can the Union file a notice of strike against Concentrix for its refusal to require the absorbed employees to join the union as a condition for continued employment? Explain. ( points) ANSWER: a. The position of Concentrix is not correct. For purposes of the application of the union security clause, the law does not make a distinction as to how anemployee became a member of the bargaining unit. Even if their becoming part of the bargaining unit is by reason of absorption after the merger and not because of new hiring, these employees are still considered new in the bargaining unit and therefore must abide by the terms of the union security clause. They have to join the union as a condition for their continued employment. b. The Union cannot file a notice of strike because Concentrix’s non-observance of the union security clause is not a strikable issue. It may be a violation of the terms of the collective bargaining between the parties that should be treated as a grievance under the grievance machinery of the CBA. Only UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 11 of 13gross violation of an economic provision of the CBA can be considered as ULP which could bea basis for filing a notice of strike, XIV A Paramount Plastic Products Inc (Paramount) owns two factories; one is located in Valenzuela City and the other in Caloocan City. The Valenzuela City factory employs 120 rank and file workers, while the Caloocan City factory employs 150 rank and file workers. The Caloocan workers organized a union- the Samahan ng mga Mangagawa sa Paramount (SMP). It applied for registration as an independent union and in its application, it declared all the rank-and-file employees of Paramount as the bargaining unit that it seeks to represent. In addition to the required documents that should accompany the application, SMP also submitted the supporting. signatures of 50 rank and employees coming from the Caloocan factory. The Regional Director for DOLE-NCR issued to SMP the certificate of registration as an independent union after determining that the application had meet all the requirements under the law. Alter it got the certilicate of registration as an independent union, SMP filed a request for SEBA certification with the DOLE-NCR Regional Office, claiming that as a legitimate labor organization, it now has the right to be certified as the sole and exchusive bargaining, representative of the rank-and-file employees of Paramount. Is SMP entitled to be certified as the ‘SEBA for the rank-and-file employees of Paramount? Explain why ot why not. (5 points) ANSWER: SMP is not yet entitled to be cettified as the SEBA of all the rank-and-file employees of Paramount. The fact of SMP’s registration as an independent union does not automatically entitles the union to be certified as the SFBA. Under the procedures for SERA certification, the applicant must show to the Regional Director that it has the support of majority of the employees in the bargaining, unit that the union seeks to represent. ‘The bargaining unit in this case has a total of 270 employees. ‘When SMP applied for registration, it only submitted a total of 50 signatures which is not even 20% of the 270 employees in the bargaining unit. B. Suppose the Regional Director issued the SEBA certification being requested by SMP. Upon receipt of the SEBA certification, SMP immediately submitted a CBA proposal to the management of Paramount. The CBA proposal defines the bargaining unit to include all the rank-and-file employees of Paramount in its Caloocan and Valenzuela factories. Upon receipt of the proposal, Paramount immediately filed a petition to nullify the registration of SMP as an independent union on the ground that it was fraudulently secured because the supporting signatures were limited only to the rank employees of the Caloocan factory and that the 20% requirement of the law was not complied with. At the same, time management refused to reply to the Union’s CBA proposal claiming that the parties should wait first for the outcome of the petition to cancel the union's registration. Will the petition to cancel the union registration prosper? Explain why or why not. (5 points) ANSWER: The Petition to cancel the union registration will prosper, for clearly the act of SMP in submitting only 50 signatures did not meet the requirement that the application must be supported by the signature of at least 20% of the employees in the bargaining unit. SMP also employed fraud in securing the registration because it limited the list only from the Caloocan employees but claimed to represent all the rank-and-file employees of Paramount, including those working in the Valenzuela factory. UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 12 of 13C. Because management refused to reply to their CBA proposal, SMP filed an unfair labor practice against the management of Paramount before the NLRC arguing that Paramount did not comply with its duty to bargain collectively as required by law. Paramount in its answer to the complaint maintained that it has no duty to bargain collectively because the status of SMP as the sole and exchisive bargaining agent is still in dispute. Will the complaint for ULP prosper? Explain why or why not. (5 points) ANSWER: The Complaint will not prosper. While itis correct that a refusal to bargain collectively is a form of unfair labor practice that could be committed by the employer, under the facts of this case, there are valid reasons why the employer should not yet bargain with SMP. Clearly, the SEBA certification that was issued by the Regional Director to SMP is erroneous because it is based only on the fact that the Union was registered by DOLE after it had submitted its application supported by only 50 signatures out of 270 employees in the bargaining that the union seeks to represent. Even assuming that their substantial compliance with the requirement for registration, still 50 signature is not enough to support an application for SEBA certification because this one requires the support of majority of the employees in the bargaining unit. SMP cannot claim to be supported by the majority of employees on the basis only of 50 signatures. The duty of the employer to bargain collectively applies only if there is a validly certified sole and exclusive bargaining agent for the bargaining unit. D. When they learned about the CBA proposal that SMP submitted to management, a group of the Valenzuela rank and file employees who does not want to be represented by SMP sought the assistance of the Progressive Labor Federation (PLF) who immediately issued to them a chapter certificate as a Chapter of the PLF. Armed with the Charter Certificate, the employees filed a petition {or certification election seeking to represent Paramount's rank and file employees in the Valenzuela Factory only. Upon learning of this Petition, SMP filed a motion to dismiss the petition on the ground that SMP was already certified as the SEBA for all the rank-and-tile employees of Paramount. Will the petition for certification election filed the local chapter of PLF prosper? Explain why or why not 6 points) ANSWER: The Petition will not prosper as it is barred by the fact that there is already a certified SEBA for the employees in the bargaining unit sought to be represented by the petitioner in the petition for certification election and that this certified SEBA has already commenced the negotiation process with the employer when it submitted its CBA proposal to Paramount. In the absence of a court ruling declaring the SEBA certification issued to SMP as invalid and ineffective, the same remains valid and must be honored by the employer and the other contending unions. -NOTHING FOLLOWS- UP LAW TRAINING AND CONVENTION DIVISION | REVIEWEE COPY Page 13 of 13