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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
Working Conditions for Special Groups of Workers A. Women 1. Women under the constitution Art. II, 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. Art. XIII, 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. Phil. Telegraph v. NLRC. In the case at bar, petitioner’s policy of not accepting or considering as disqualified from work any woman worker who contracts marriage runs afoul of the test of , and the right against, discrimination, afforded all women workers by our labor laws and by no less than the constitution. Contrary to petitioner’s assertion that it dismissed private respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the company were dissolved principally because of the company’s policy that married women are not qualified for employment in PT&T, and not merely because of her supposed acts of dishonesty. Coverage OR, Book III, Rule XII, Sec. 1. This Rule shall apply to all employers, whether operating for profit or not, including educational, religious and charitable institutions, except to the Government and to government-owned or controlled corporations and to employers of household helpers and persons in their personal service insofar as such workers are concerned. Equal treatment before the law RA 9710, Sec.2 par.1. Recognizing that the economic, political, and sociocultural realities affect women's current condition, the State affirms the role of women in nation building and ensures the substantive equality of women and men. It shall promote empowerment of women and pursue equal opportunities for women and men and ensure equal access to resources and to development results and outcome. Further, the State realizes that equality of men and women entails the abolition of the unequal structures and practices that perpetuate discrimination and inequality. To realize this, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms to address discrimination and inequality in the economic, political, social, and cultural life of women and men. RA 9710, Sec. 12. Equal Treatment Before the Law. - The State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women within three (3) years from the effectivity of this Act. Prohibited acts a. Night work/exception LC, 130. Nightwork prohibition. - No woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation: (a) In any industrial undertaking or branch thereof between ten o’clock at night and six o’clock in the morning of the following day; or (b) In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and six o’clock in the morning of the following day; or (c) In any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours. LC, 131. Exceptions. - The prohibitions prescribed by the preceding Article shall not apply in any of the following cases: (a) In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety; (b) In case of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer; (c) Where the work is necessary to prevent serious loss of perishable goods; (d) Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare services; (e) Where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers; (f) Where the women employees are immediate members of the family operating the establishment or undertaking; and (g) Under other analogous cases exempted by the Secretary of Labor and Employment in appropriate regulations. b. Discrimination LC, 135. Discrimination Prohibited. – It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. The following are acts of discrimination: (a) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value; and (b) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. Criminal liability for the willful commission of any unlawful act as provided in this Article or any violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. (As amended by Republic Act No. 6725, May 12, 1989). RA 9710, Sec. 2 par. 2. The State condemns discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord women the rights, protection, and opportunities available to every member of society. c. Stipulation against marriage LC, 136. It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely be reason of her marriage.

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
Duncan Assoc. v. Glaxo Wellcome. Glaxo’s policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid excuse of management prerogative. Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors, especially so that it and Astra are rival companies in the highly competitive pharmaceutical industry. || While our laws endeavor to give life to constitutional policy on social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the workers; the law also recognizes that management has rights which are also entitled to respect and enforcement in the interest of fair play. d. Discharge to prevent enjoyment of benefits LC, 137 (1). Prohibited Acts. – (a) It shall be unlawful for any employer: (1) To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code e. Discharge on account of pregnancy LC, 137(2). To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy. LC, 137(3). To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant f. Discharge on Account of Testimony OR, Book III, Rule XII Sec. 13(d). To discharge any woman or child or any other employee for having filed a complaint or having testified or being about to testify under the Code. g. Expulsion of Women faculty due to pregnancy outside of marriage RA 9710, Sec. 13(c). Expulsion and non-readmission of women faculty due to pregnant;- outside of marriage shall be outlawed. No school shall turn out or refuse admission to a female student solely on the account of her having contracted pregnancy outside of marriage during her term in school.c Facilities LC, 132. Facilities for women. - The Secretary of Labor and Employment shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to: (a) Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency; (b) To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; (c) To establish a nursery in a workplace for the benefit of the women employees therein; and (d) To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like. LC, 134. Family Planning Services; Incentives for Family Planning. - (a) Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include, but not be limited to, the application or use of contraceptive pills and intrauterine devices. (b) In coordination with other agencies of the government engaged in the promotion of family planning, the Department of Labor and Employment shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment or enterprise. OR, Book III, Rule XII, Sec. 11. Family planning services. — Employers who habitually employ more than two hundred (200) workers in any locality shall provide free family-planning services to their employees and their spouses which shall include but not limited to, the application or use of contraceptives. Subject to the approval of the Secretary of Labor and Employment, the Bureau of Women and Young Workers shall, within thirty (30) days from the effective date of these Rules, prescribe the minimum requirements of family planning services to be given by employers to their employees. Special women workers LC, 138. Classification of Certain Women Workers. – Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation. Maternity leave SSS Act of 1997, Sec. 14-A. Maternity Leave Benefit. - A female member who has paid at least three (3) monthly contributions in the twelve-month period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her average daily salary credit for sixty (60) days or seventy-eight (78) days in case of caesarian delivery, subject to the following conditions: (a) That the employee shall have notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide; (b) The full payment shall be advanced by the employer within thirty (30) days from the filing of the maternity leave application; (c) That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided by this Act for the same period for which daily maternity benefits have been received; (d) That the maternity benefits provided under this section shall be paid only for the first four (4) deliveries or miscarriages; (e) That the SSS shall immediately reimburse the employer of one hundred percent (100%) of the amount of maternity benefits advanced to the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof; and (f) That if an employee member should give birth or suffer miscarriage without the required contributions having been remitted for her by her employer to the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to. RA 828. Sexual harassment RA 7877 of 1995. AN ACT DECLARING SEXUAL HARASSMENT UNLAWFUL IN THE EMPLOYMENT, EDUCATION OR TRAINING ENVIRONMENT, AND FOR OTHER PURPOSES. SECTION 1. Title. - This Act shall be known as the "Anti-Sexual Harassment Act of 1995." SECTION 2. Declaration of Policy. - The State shall value the dignity of every individual, enhance the development of its human resources, guarantee full respect for human rights, and uphold the dignity of workers, employees, applicants for employment, students or those undergoing training, instruction or education. Towards this end, all forms of sexual harassment in the

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
employment, education or training environment are hereby declared unlawful. SECTION 3. Work, Education or Training -Related, Sexual Harassment Defined. - Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a) In a work-related or employment environment, sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employee's rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. (b) In an education or training environment, sexual harassment is committed: (1) Against one who is under the care, custody or supervision of the offender; (2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; (3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or (4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act. SECTION 4. Duty of the Employer or Head of Office in a Work-related, Education or Training Environment. - It shall be the duty of the employer or the head of the work-related, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall: (a) Promulgate appropriate rules and regulations in consultation with and joint1y approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. The said rules and regulations issued pursuant to this subsection (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions. (b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with officers and employees, teachers, instructors, professors, coaches, trainors, and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of alleged cases constituting sexual harassment. (c) In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees. In the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, instructors, professors or coaches and students or trainees, as the case may be. The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned. SECTION 5. Liability of the Employer, Head of Office, Educational or Training Institution. - The employer or head of office, educational or training institution shall be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken. SECTION 6. Independent Action for Damages. - Nothing in this Act shall preclude the victim of work, education or training-related sexual harassment from instituting a separate and independent action for damages and other affirmative relief. SECTION 7. Penalties. - Any person who violates the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than Ten thousand pesos (P10,000) nor more than Twenty thousand pesos (P20,000), or both such fine and imprisonment at the discretion of the court. Any action arising from the violation of the provisions of this Act shall prescribe in three (3) years. SECTION 8. Separability Clause. - If any portion or provision of this Act is declared void or unconstitutional, the remaining portions or provisions hereof shall not be affected by such declaration. SECTION 9. Repealing Clause. - All laws, decrees, orders, rules and regulations, other issuances, or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SECTION 10. Effectivity Clause.- This Act shall take effect fifteen (15) days after its complete publication in at least two (2) national newspapers of general circulation. Phil. Aeolus v. NLRC. The gravamen of the offense in sexual harassment is not the violation of the employee’s sexuality but the abuse of power by the employer. Any employee, male or female, may rightfully cry “foul” provided the claim is well-substantiated. Strictly speaking, there is no time period within which he or she is expected to complain through proper channels. The time to do so may vary depending upon the needs, circumstances, and more importantly, the emotional threshold of the employee. Libres v. NLRC. RA 7877 was not yet in effect at the time of the occurrence of the act complained of. It was still being deliberated upon in Congress when petitioner’s case was decided by the LA. As a rule, laws shall have no retroactive effect unless otherwise provided, or except in a criminal case when their application will favor the accused. Hence, the LA have to rely on the MEC report and the common connotation of sexual harassment as it is generally understood by the public. Minors 1. Minors under the constitution Art. II, 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. 2. Coverage RA 9231, Sec 2 par. 3. For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age.

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
3. OR, Book III, Rule XII, Sec. 1, supra. Employment of children LC, 139. Minimum Employable Age. - (a) No child below fifteen (15) years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling. (b) Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations.(c) The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment. RA 7610 as amended Sec. 12. Employment of Children - Children below fifteen (15) years of age shall not be employed except: 1) When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of his/her family are employed: Provided, however, That his/her employment neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development: Provided, further, That the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or 2) Where a child's employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential: Provided, That the employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: Provided, further, That the following requirements in all instances are strictly complied with: (a) The employer shall ensure the protection, health, safety, morals and normal development of the child; (b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and (c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child. In the above-exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age. RA 7610 as amended Sec. 13. Access to Education and Training for Working Children – a) No child shall be deprived of formal or non-formal education. In all cases of employment allowed in this Act, the employer shall provide a working child with access to at least primary and secondary education. b) To ensure and guarantee the access of the working child to education and training, the Department of Education (DEPED) shall: (1) formulate, promulgate, and implement relevant and effective course designs and educational programs; (2) conduct the necessary training for the implementation of the appropriate curriculum for the purpose; (3) ensure the availability of the needed educational facilities and materials; and (4) conduct continuing research and development program for the necessary and relevant alternative education of the working child. c) The DEPED shall promulgate a course design under its non-formal education program aimed at promoting the intellectual, moral and vocational efficiency of working children who have not undergone or finished elementary or secondary education. Such course design shall integrate the learning process deemed most effective under given circumstances. RA 7610 as amended Sec. 14. Prohibition on the Employment of Children in Certain Advertisements. - No child shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography. RA 7610 as amended Sec. 15. RA 7610 as amended Sec. 16. Penal Provisions – a) Any employer who violates Sections 12, 12-A, and Section 14 of this act, as amended, shall be penalized by imprisonment of six (6) months and one (1) day to six (6) years or a fine of not less than Fifty thousand pesos (P50,000.00) but not more than Three hundred thousand pesos (P300,000.00) or both at the discretion of the court. b) Any person who violates the provision of Section 12-D of this act or the employer of the subcontractor who employs, or the one who facilitates the employment of a child in hazardous work, shall suffer the penalty of a fine of not less than One hundred thousand pesos (P100,000.00) but not more than One million pesos (P1,000,000.00), or imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years, or both such fine and imprisonment at the discretion of the court. c) Any person who violates Sections 12-D(1) and 12-D(2) shall be prosecuted and penalized in accordance with the penalty provided for by R. A. 9208 otherwise known as the "Anti-trafficking in Persons Act of 2003": Provided, That Such penalty shall be imposed in its maximum period. d) Any person who violates Section 12-D (3) shall be prosecuted and penalized in accordance with R.A. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002"; Provided, That such penalty shall be imposed in its maximum period. e) If a corporation commits any of the violations aforecited, the board of directors/trustees and officers, which include the president, treasurer and secretary of the said corporation who participated in or knowingly allowed the violation, shall be penalized accordingly as provided for under this Section. f) Parents, biological or by legal fiction, and legal guardians found to be violating Sections 12, 12-A, 12-B and 12-C of this Act shall pay a fine of not less than Ten thousand pesos (P10,000.00) but not more than One hundred thousand pesos (P100,000.00), or be required to render community service for not less than thirty (30) days but not more than one (1) year, or both such fine and community service at the discretion of the court: Provided, That the maximum length of community service shall be imposed on parents or legal guardians who have violated the provisions of this Act three (3) times; Provided, further, That in addition to the community service, the penalty of imprisonment of thirty (30) days but not more than one (1) year or both at the discretion of the court, shall be imposed on the parents or legal guardians who have violated the provisions of this Act more than three (3) times. g) The Secretary, of Labor and Employment or his/her duly authorized representative may, after due notice and hearing, order the closure of any business firm or establishment found to have violated any of the provisions of this Act more than three (3) times. He/she shall likewise order the immediate closure of such firm or establishment if: (1) The violation of any provision of this Act has resulted in the death, insanity or serious physical injury of a child employed in such establishment; or (2) Such firm or establishment is engaged or employed in prostitution or in obscene or lewd shows. h) In case of such closure, the employer shall be required to pay the employee(s) the separation pay and other monetary benefits provided for by law.

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
DOLE D.O. 04. reiterates the prohibitions and exceptions to employment of children below 15 years of age and 18 years in hazardous or deleterious work. It defines work and activities that are hazardous to persons below 18 years and classifies them into five categories: (1) work which exposes children to physical, psychological or sexual abuse; (2) work underground, underwater, at dangerous heights or at unguarded heights of two meters and above, or in confined places; (3) work with dangerous machinery, equipment and tools, or which involves manual handling or transport of heavy loads; (4) work in an unhealthy environment which may expose children to hazardous processes, to temperatures, noise levels or vibrations damaging to their health, to toxic, corrosive, poisonous, noxious, explosive, flammable and combustible substances or composites, to harmful biological agents, or to other dangerous chemicals including pharmaceuticals; and (5) work under particularly difficult conditions such as work for long hours or during the night, or work where the child is unreasonably confined to the premises of the employer. Hours of work RA 9231, Sec. 3 (12-a). Hours of Work of a Working Child. - Under the exceptions provided in Section 12 of this Act, as amended: (1) A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: Provided, That the work shall not be more than four (4) hours at any given day; (2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a week; (3) No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six o'clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work between ten o'clock in the evening and six o'clock in the morning of the following day." Prohibitions against worst forms of child labor RA 9231, Sec. 3 (12-d), Prohibition Against Worst Forms of Child Labor. - No child shall be engaged in the worst forms of child labor. The phrase "worst forms of child labor" shall refer to any of the following: (1) All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or (2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or (3) The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or (4) Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it: a) Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or b) Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or c) Is performed underground, underwater or at dangerous heights; or d) Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive power-actuated tools; or e) Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or f) Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or g) Is performed under particularly difficult conditions; or h) Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or i) Involves the manufacture or handling of explosives and other pyrotechnic products. RA 9231 Sec. 5 (14), supra. Discrimination LC, 140. Prohibition Against Child Discrimination. - No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. Jurisdiction RA 9231, Sec. 9 (16-A). Trust Fund from Fines and Penalties - The fine imposed by the court shall be treated as a Trust Fund, administered by the Department of Labor and Employment and disbursed exclusively for the needs, including the costs of rehabilitation and reintegration into the mainstream of society of the working children who are victims of the violations of this Act, and for the programs and projects that will prevent acts of child labor.

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Househelpers / caregivers 1. Definition OR, Book III Rule XIII Sec 1(b). The term "househelper" as used herein is synonymous to the term "domestic servant" and shall refer to any person, whether male or female, who renders services in and about the employer's home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family. 2. Coverage LC, 141. “Domestic or household service” shall mean service in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers. 3. Non-household work LC, 145. Assignment to Non-Household Work. – No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein. Apex Mining v. NLRC. The definition in the Omnibus rules cannot be interpreted to include househelp or laundrywomen working in staffhouses of a company, like petitioner who attends to the needs of the company’s guest and other persons availing of said facilities. 4. Conditions of Employment a. Compensation

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
LC, 143. Minimum Wage. – (a) Househelpers shall be paid the following minimum wage rates: (1) Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Paranaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities; (2) Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and (3) Five hundred fifty pesos (P550.00) a month for those in other municipalities. Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof. Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. (As amended by Republic Act No. 7655, August 19, 1993). LC, 144. Minimum Cash Wage. – The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance. CC, 1689. Household service shall always be reasonably compensated. Any stipulation that household service is without compensation shall be void. Such compensation shall be in addition to the house helper's lodging, food, and medical attendance.  Time and manner of payment Book III, Rule XIII, Sec. 9. Time and manner of payment. — Wages shall be paid directly to the househelper to whom they are due at least once a month. No deductions therefrom shall be made by the employer unless authorized by the househelper himself or by existing laws. Hours of Work CC, 1695. House helper shall not be required to work more than ten hours a day. Every house helper shall be allowed four days' vacation each month, with pay. Vacation with pay CC, 1695. House helper shall not be required to work more than ten hours a day. Every house helper shall be allowed four days' vacation each month, with pay. Living quarters, Food, Med. Attendance LC, 148. Board, Lodging, and Medical Attendance. – The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters as well as adequate food and medical attendance. CC, 1689. Household service shall always be reasonably compensated. Any stipulation that household service is without compensation shall be void. Such compensation shall be in addition to the house helper's lodging, food, and medical attendance. Treatment LC, 147. Treatment of Househelpers. – The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper. CC, 1694. The head of the family shall treat the house helper in a just and humane manner. In no case shall physical violence be used upon the house helper. Elementary education LC, 146. Opportunity for Education. – If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of education shall be part of the househelper’s compensation, unless there is a stipulation to the contrary. CC, 1691. If the house helper is under the age of eighteen years, the head of the family shall give an opportunity to the house helper for at least elementary education. The cost of such education shall be a part of the house helper's compensation, unless there is a stipulation to the contrary. Term of contract LC, 142. Contract of Domestic Service. – The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties. CC, 1692. No contract for household service shall last for more than two years. However, such contract may be renewed from year to year. Termination i. Fixed duration LC, 149. Indemnity for Unjust Termination of Services. – If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity. If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days. CC, 1697. If the period for household service is fixed neither the head of the family nor the house helper may terminate the contract before the expiration of the term, except for a just cause. If the house helper is unjustly dismissed, he shall be paid the compensation already earned plus that for fifteen days by way of indemnity. If the house helper leaves without justifiable reason, he shall forfeit any salary due him and unpaid, for not exceeding fifteen days. ii. Not fixed LC, 150. Service of Termination Notice. – If the duration of the household service is not determined either in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service. CC, 1698. If the duration of the household service is not determined either by stipulation or by the nature of the service, the head of the family or the house helper may give notice to put an end to the service relation, according to the following rules: (1) If the compensation is paid by the day, notice may be given on any day that the service shall end at the close of the following day; (2) If the compensation is paid by the week, notice may be given, at the latest on the first business day of the week, that the service shall be terminated at the end of the seventh day from the beginning of the week; (3) If the compensation is paid by the month, notice may be given, at the latest, on the fifth day of the month, that the service shall cease at the end of the month. Employment certification LC, 151. Employment Certification. – Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper. CC, 1699. Upon the extinguishment of the service relation, the house helper may demand from the head of the family a written statement on the nature and duration of the service and the efficiency and conduct of the house helper.

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
Employment Records CC, 152. Employment Record. – The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which the latter shall authenticate by signature or thumbmark upon request of the employer. k. Funeral expenses CC, 1696. In case of death of the house helper, the head of the family shall bear the funeral expenses if the house helper has no relatives in the place where the head of the family lives, with sufficient means therefor. Book III, Rule XIII, Sec. 16. Funeral expenses. — In case of death of the househelper, the employer shall bear the funeral expenses commensurate to the standards of life of the deceased. l. Hazardous work: persons below 18 years D.O. 4-99, Sec. 4. Homeworkers 1. Coverage and Regulation LC, 153. Regulation of Industrial Homeworkers. - The employment of industrial homeworkers and field personnel shall be regulated by the government through the appropriate regulations issued by the Secretary of Labor and Employment to ensure the general welfare and protection of homeworkers and field personnel and the industries employing them. LC, 154. Regulations of Secretary of Labor. – The regulations or orders to be issued pursuant to this Chapter shall be designed to assure the minimum terms and conditions of employment applicable to the industrial homeworkers or field personnel involved. LC, 155. Distribution of Homework. – For purposes of this Chapter, the “employer” of homeworkers includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, sub-contractor or any other person: (1) Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or (2) Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication, either by himself or through some other person. D.O. 5, now Book III, Rule XIV. 2. Definition Book III, Rule XIV, Sec. 2. Definitions. — As used in this Rule, the following terms shall have the meanings indicated hereunder: (a) "Home" means any room, house, apartment, or other premises used regularly, in whole or in part, as a dwelling place, except those situated within the premises or compound of an employer, contractor, and the work performed therein is under the active or personal supervision by, or for, the latter. (b) "Employer" means any natural or artificial person who, for his own account or benefit, or on behalf of any person residing outside the Philippines, directly or indirectly, or through any employee, agent, contractor, sub-contractor; or any other person: (1) Delivers or causes to be delivered any goods or articles to be processed in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his direction; or (2) Sells any goods or articles for the purpose of having such goods or articles processed in or about a home and then repurchases them himself or through another after such processing. (c) "Contractor" or "sub-contractor" means any person who, for the account or benefit of an employer, delivers or caused to be delivered to a homeworker goods or articles to be processed in or about his home and thereafter to be returned, disposed of or distributed in accordance with the direction of the employer. (d) "Processing" means manufacturing, fabricating, finishing, repairing, altering, packing, wrapping or handling any material. 3. Registration Book III, Rule XIV, Sec. 4. Deductions. — No employee, contractor, or sub-contractor shall make any deduction from the homeworker's earnings for the value of materials which have been lost, destroyed, soiled or otherwise damaged unless the following conditions are met: (a) The homeworker concerned is clearly shown to be responsible for the loss or damage; (b) The employee is given reasonable opportunity to show cause why deductions should not be made; (c) The amount of such deduction is fair and reasonable and shall not exceed the actual loss or damages; and (d) The deduction is made at such rate that the amount deducted does not exceed 20% of the homeworker's earnings in a week. Book III, Rule XIV, Sec. 6. Disagreement between homeworkers and employer. — In cases of disagreement between the homeworker and the employer, contractor or sub-contractor on matters falling under Section 4 (a), 5 and 6 of this Rule, either party may refer the case to the Regional Office having jurisdiction over the homeworker. The Regional Office shall decide the case within ten (10) working days from receipt of the case. Its decision shall be final and unappealable. 4. Conditions of Employment/Deductions Book III, Rule XIV, Sec. 6, supra. Book III, Rule XIV, Sec. 7. Book III, Rule XIV, Sec. 8 Book III, Rule XIV, Sec. 9 5. Joint and Several Liability of employer/contractor Book III, Rule XIV, Sec. 11 6. Prohibitions Book III, Rule XIV, Sec. 13 7. Enforcement Book III, Rule XIV, Sec. 10 j.

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Medical, Dental and Occupational Safety a. Coverage Book IV, Rule I, Sec. 1. Coverage. — This Rule shall apply to all employers, whether operating for profit or not, including the Government and any of its political subdivisions and government-owned or controlled corporations, which employs in any workplace one or more workers. The development and enforcement of dental standards shall continue to be under the responsibility of the Bureau of Dental Health Services of the Department of Health. First Aid Treatment

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
LC, 156. First-Aid Treatment. – Every employer shall keep in his establishment such first-aid medicines and equipment as the nature and conditions of work may require, in accordance with such regulations as the Department of Labor and Employment shall prescribe. The employer shall take steps for the training of a sufficient number of employees in first-aid treatment. Emergency Medical and Dental Services 1. When required LC, 157. Emergency Medical and Dental Services. – It shall be the duty of every employer to furnish his employees in any locality with free medical and dental attendance and facilities consisting of: (a) The services of a full-time registered nurse when the number of employees exceeds fifty (50) but not more than two hundred (200) except when the employer does not maintain hazardous workplaces, in which case, the services of a graduate first-aider shall be provided for the protection of workers, where no registered nurse is available. The Secretary of Labor and Employment shall provide by appropriate regulations, the services that shall be required where the number of employees does not exceed fifty (50) and shall determine by appropriate order, hazardous workplaces for purposes of this Article; (b) The services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic, when the number of employees exceeds two hundred (200) but not more than three hundred (300); and (c) The services of a full-time physician, dentist and a full-time registered nurse as well as a dental clinic and an infirmary or emergency hospital with one bed capacity for every one hundred (100) employees when the number of employees exceeds three hundred (300). In cases of hazardous workplaces, no employer shall engage the services of a physician or a dentist who cannot stay in the premises of the establishment for at least two (2) hours, in the case of those engaged on part-time basis, and not less than eight (8) hours, in the case of those employed on full-time basis. Where the undertaking is non-hazardous in nature, the physician and dentist may be engaged on retainer basis, subject to such regulations as the Secretary of Labor and Employment may prescribe to insure immediate availability of medical and dental treatment and attendance in case of emergency. (As amended by Section 26, Presidential Decree No. 570-A, November 1, 1974). Escasinas v. Shangri-la. Art. 157 does not require the engagement of full-time nurses as regular employees of a company employing not less than 50 workers. Shangri-la, which employs more than 200 workers, is mandated to “furnish” its employees with the services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic which means that it should provide or make available such medical and allied services to its employees, not necessarily to hire or employ a service provider. 2. When not required LC, 158. When Emergency Hospital Not Required. – The requirement for an emergency hospital or dental clinic shall not be applicable in case there is a hospital or dental clinic which is accessible from the employer’s establishment and he makes arrangement for the reservation therein of the necessary beds and dental facilities for the use of his employees. Employer assistance – obligation LC, 161. Assistance of employer. - It shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee in case of emergency. Occupational Safety and health standards, training of superv./tech. 1. When required Book IV, Rule II, Sec 5(a). Training of personnel in safety and health. — Every employer shall take steps to train a sufficient number of his supervisors or technical personnel in occupational safety and health. An employer may observe the following guidelines in the training of his personnel: (a) In every non-hazardous establishment or workplace having from fifty (50) to four hundred (400) workers each shift, at least one of the supervisors or technical personnel shall be trained in occupational health and safety and shall be assigned as part-time safety man. Such safety man shall be the secretary of the safety committee. Book IV, Rule II, Sec 5(d). Training of personnel in safety and health. — Every employer shall take steps to train a sufficient number of his supervisors or technical personnel in occupational safety and health. An employer may observe the following guidelines in the training of his personnel: (d) In every hazardous establishment or workplace having over two hundred (200) workers each shift, at least two of its supervisors or technical personnel shall be trained and one of them shall be appointed fulltime safety man and secretary of the safety committee therein. 2. When not required Book IV, Rule II, Sec 5(e). Training of personnel in safety and health. — Every employer shall take steps to train a sufficient number of his supervisors or technical personnel in occupational safety and health. An employer may observe the following guidelines in the training of his personnel: (e) The employment of a full-time safety man not be required where the employer enters into a written contract with a qualified consulting organization which shall develop and carry out his safety and health activities; Provided, That the consultant shall conduct plant visits at least four (4) hours a week and is subject to call anytime to conduct accident investigations and is available during scheduled inspections or surveys by the Secretary of Labor and Employment or his authorized representatives. Enforcement/DOLE obligations LC, 162. Safety and health standards. - The Secretary of Labor and Employment shall, by appropriate orders, set and enforce mandatory occupational safety and health standards to eliminate or reduce occupational safety and health hazards in all workplaces and institute new, and update existing, programs to ensure safe and healthful working conditions in all places of employment. LC, 163. Research. - It shall be the responsibility of the Department of Labor and Employment to conduct continuing studies and research to develop innovative methods, techniques and approaches for dealing with occupational safety and health problems; to discover latent diseases by establishing causal connections between diseases and work in environmental conditions; and to develop medical criteria which will assure insofar as practicable that no employee will suffer impairment or diminution in health, functional capacity, or life expectancy as a result of his work and working conditions. LC, 164. Training programs. - The Department of Labor and Employment shall develop and implement training programs to increase the number and competence of personnel in the field of occupational safety and industrial health. LC, 165. Administration of safety and health laws. - (a) The Department of Labor and Employment shall be solely responsible for the administration and enforcement of occupational safety and health laws, regulations and standards in all establishments and workplaces wherever they may be located; however, chartered cities may be allowed to conduct industrial safety inspections of establishments within their respective jurisdictions where they have adequate facilities and competent personnel for the purpose as determined by the Department of Labor and Employment and subject to national standards established by the latter. (b) The Secretary of Labor and Employment may, through appropriate regulations, collect reasonable fees for the inspection of steam boilers, pressure vessels and pipings and electrical installations, the test and approval for safe use of materials, equipment and other safety devices and the approval of plans for such materials, equipment and devices. The fee so collected shall be deposited in the national treasury to the credit of the

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
occupational safety and health fund and shall be expended exclusively for the administration and enforcement of safety and other labor laws administered by the Department of Labor and Employment. LC, 166- 208: repealed by SSS Law of 1997. Employee Classification 1. Coverage LC, 278. The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not. 2. Employee Classification LC, 280. Regular and casual employment. - The provisions of written agreement to the contrary notwithstanding and 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, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. LC, 281. Probationary employment. - Probationary employment 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. a. Employer Recognition Romares v. NLRC. In determining the status of petitioner as a regular employee, reference is made to LC, 280, thus the 2 kinds of regular employees are (1) those who are engaged to perform activities which are necessary or desirable in the usual business or trade of the employer, and (2) those casual employees who have rendered ar least one year of service, whether continuous or broken, with respect to the activity in which they are employed. b. Employer Determination/Designation Phil. Federation v. NLRC. Regardless of the designation an employer may have conferred upon a worker’s employment status, where the latter has completed the probationary period and allowed to work thereafter, he becomes a regular employee, and a dismissal premised on an alleged expiration of the contract is illegal. A. Regular Employees LC, 280 par. 1. supra LC, 280 par. 2. supra LC, 281, last sentence supra LC, 75(d). A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. Book VI, Rule I, Sec 5(a). The provisions of written agreements to the contrary notwithstanding and regardless of the oral agreements of the parties, an employment shall be considered to be regular employment for purposes of Book VI of the Labor Code where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. Book VI, Rule I, Sec 5 (b). Employment shall be deemed as casual in nature if it is not covered by the preceding paragraph; Provided, That any employee who has rendered at least one year of service, whether such service is continuous or not, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. Book VI, Rule I, Sec 6. Probationary employment. — (a) Where the work for which an employee has been engaged is learnable or apprenticeable in accordance with the standards prescribed by the Department of Labor, the probationary employment period of the employee shall be limited to the authorized learnership or apprenticeship period, whichever is applicable. 1. Nature of Work Poseidon Fishing v. NLRC. The activity of catching fish is a continuous process and could hardly be considered as seasonal in nature. Project employees are defined as those workers hired (1) for a specific project or undertaking, and (2) the completion or termination of such project has been determined at the time of the engagement of the employee. The principal test in determining whether the particular employees are “project EEs” as distinguished from “regular EEs” is whether or not the project EEs were assigned to carry out a “specific project or undertaking,” the duration and scope of which were specified at the time the employees were engaged for that project. Dante dela Cruz v. Maersk. It is well to remind both parties that, as early as Brent School, Inc. v. Zamora, we already held that seafarers are not covered by the term regular employment, as defined under Article 280 of the Labor Code. This was reiterated in Coyoca v. National Labor Relations Commission. Instead, they are considered contractual employees whose rights and obligations are governed primarily by the POEA Standard Employment Contract for Filipino Seamen (POEA Standard Employment Contract), the Rules and Regulations Governing Overseas Employment, and, more importantly, by Republic Act No. 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995. Even the POEA Standard Employment Contract itself mandates that in no case shall a contract of employment concerning seamen exceed 12 months. || It is an accepted maritime industry practice that the employment of seafarers is for a fixed period only. The Court acknowledges this to be for the mutual interest of both the seafarer and the employer. Seafarers cannot stay for a long and indefinite period of time at sea as limited access to shore activity during their employment has been shown to adversely affect them. Furthermore, the diversity in nationality, culture and language among the crew necessitates the limitation of the period of employment WPP Marketing v. Galera. Galera, on the belief that she is an employee, filed her complaint before the Labor Arbiter. On the other hand, WPP, Steedman, Webster and Lansang contend that Galera is a corporate officer; hence, any controversy regarding her dismissal is under the jurisdiction of the Regional Trial Court. We agree with Galera. || Corporate officers are given such character either by the Corporation Code or by the corporation’s by-laws. Under Section 25 of the Corporation Code, the corporate officers are the president, secretary, treasurer and such other officers as may be provided in the by-laws. Other officers are sometimes created by the charter or by-laws of a corporation, or the board of directors may be empowered under the by-laws of a corporation to create additional offices as may be necessary. || An examination of WPP’s by-laws

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
resulted in a finding that Galera’s appointment as a corporate officer (Vice-President with the operational title of Managing Director of Mindshare) during a special meeting of WPP’s Board of Directors is an appointment to a non-existent corporate office. 2. Extended Period Tomas Lao v. NLRC. The continuous rehiring of the same set of employees within the framework of a particular group of companies is strongly indicative that the employees are an integral part of a work pool from which the companies drew their workers for their various project. A work pool may exist although the workers in the pool do not receive salaries and are free to seek other employment during temporary breaks in the business, provided that the worker shall be available when called to report for a project. Moreover, failure of the employer to file termination papers after every project completion proves that the employees are not project employees. 3. Repeated Renewal of Contract Beta Electric Corp. v. NLRC. The fact that the employment was on a contract-to-contract basis does not give it the character of temporary employment. The work of a typist-clerk is not specific nor seasonal, but involves performance of activities which are usually necessary or desirable in the usual business, hence not temporary in nature. Project Employees LC, 281 1st par., supra. Policy Instructions No. 20 (1977) D.O. 19 (1993) 1. Definition Hanjin v. Ibañez. The principal test for determining whether employees are "project employees" or "regular employees" is whether they are assigned to carry out a specific project or undertaking, the duration and scope of which are specified at the time they are engaged for that project. Such duration, as well as the particular work/service to be performed, is defined in an employment agreement and is made clear to the employees at the time of hiring. || The importance of the employees' knowing consent to being engaged as project employees when it clarified that "there is no question that stipulation on employment contract providing for a fixed period of employment such as `project-to-project' contract is valid provided the period was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent x x x." 2. Project Employment Villa v. NLRC. Length of service is not the controlling determinant of the employment tenure of a project employee; the proviso in the second paragraph of LC. 280 providing that an employee who has served for at least one year, shall be considered a regular employee, relates only to casual employees and not to project employees. Uy v. Trinidad. But the test for distinguishing a "project employee" from a "regular employee" is whether or not he has been assigned to carry out a "specific project or undertaking," with the duration and scope of his engagement specified at the time his service is contracted. Here, it is not disputed that petitioner company contracted respondent Trinidad’s service by specific projects with the duration of his work clearly set out in his employment contracts. He remained a project employee regardless of the number of years and the various projects he worked for the company. || Generally, length of service provides a fair yardstick for determining when an employee initially hired on a temporary basis becomes a permanent one, entitled to the security and benefits of regularization. But this standard will not be fair, if applied to the construction industry, simply because construction firms cannot guarantee work and funding for its payrolls beyond the life of each project. And getting projects is not a matter of course. Construction companies have no control over the decisions and resources of project proponents or owners. There is no construction company that does not wish it has such control but the reality, understood by construction workers, is that work depended on decisions and developments over which construction companies have no say. 3. Application of Rule in Non-Construction Industries Maraguinot v. NLRC. There seems to be no impediment in applying the underlying principles in P.I. 20/D.O. 19 to industries other than the construction industry. Neither may it be argued that there exists a substantial distinction between the projects undertaken in the construction industry and the motion picture industry. On the contrary the raison d’être of both industries concern projects with a foreseeable suspension of work. Casual Employees LC, 280, 2nd par., supra Book VI, Rule I, Sec 5(b), supra 1. Nature of work Maranaw Hotels v. CA. It appears further that private respondent has already rendered more than one year of service to the petitioner, for the period 1995-1998, for which she must already be considered a regular employee, pursuant to Article 280 of the Labor Code 2. One year service Tabas v. California Mfg. Co. A temporary or casual employee becomes regular after service of one year, unless he has been contracted for a specific project. Mercado v. NLRC. Petitioners being project employees or to use the correct term, seasonal employees, their employment legally ends upon the completion of the prohect or the season. Fixed-Term Employees Brent v. Zamora. Stipulations in the employment contracts provided for “term employment” or “fixed period employment” are valid when the period were agreed upon knowingly, and voluntarily by the parties without force, duress or improper pressure exerted on the employee; and when such stipulations were not designed to circumvent the laws on security of tenure. Mercado v. AMA. The fixed-term character of employment essentially refers to the period agreed upon between the employer and the employee; employment exists only for the duration of the term and ends on its own when the term expires. In a sense, employment on probationary status also refers to a period because of the technical meaning "probation" carries in Philippine labor law – a maximum period of six months, or in the academe, a period of three years for those engaged in teaching jobs. Their similarity ends there, however, because of the overriding meaning that being "on probation" connotes, i.e., a process of testing and observing the character or abilities of a person who is new to a role or job. || Understood in the above sense, the essentially protective character of probationary status for management can readily be appreciated. But this same protective character gives rise to the countervailing but equally protective rule that the probationary period can only last for a specific maximum period and under reasonable, well-laid and properly communicated standards. Otherwise stated, within the period of the probation, any employer move based on the probationary standards and affecting the continuity of the employment must strictly conform to the probationary rules. || Under the given facts where the school year is divided into trimesters, the school apparently utilizes its fixed-term contracts as a convenient arrangement dictated by the trimestral system and not because the workplace parties really intended to limit the period of their relationship to any fixed term and to finish this

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
relationship at the end of that term. If we pierce the veil, so to speak, of the parties’ so-called fixed-term employment contracts, what undeniably comes out at the core is a fixed-term contract conveniently used by the school to define and regulate its relations with its teachers during their probationary period. LWVCC v. Dupo. Respondent’s employment contracts expressly stated that his employment ended upon his departure from work. Each year he departed from work and successively new contracts were executed before he reported for work anew. His service was not cumulative. Pertinently, in Brent School, Inc. v. Zamora, we said that a fixed term is an essential and natural appurtenance of overseas employment contract, as in this case. We also said in that case that under American law, [w]here a contract specifies the period of its duration, it terminates on the expiration of such period. A contract of employment for a definite period terminates by its own terms at the end of such period. E. Seasonal Employees Phil. Tobacco v. NLRC. Seasonal workers who are called to work from time to time and are temporarily laid off during off season are not separated from service in said period, but are merely considered on leave until reemployed. There is no clear conflict between that doctrine and LC, 280. || Jurisprudence  Court considers seasonal worker “in regular employment” in cases involving the determination of an EE-ER relationship and security of tenure. F. Probationary Employees LC, 281, supra LC, 61, 2nd sentence. The period of apprenticeship shall not exceed six months. Book VI, Rule I, Sec 6, supra LC, 75(d), supra. 1. Definition/ Purpose Cebu Marine Beach Resort v. NLRC. It is well-settled that while probationary employees do not enjoy permanent status, they are entitled to the constitutional protection of security of tenure. Their employment may only be terminated for just cause or when they fail to qualify as regular employees in accordance with reasonable standards made known to them by their employer at the time of engagement and after due process. || being in the nature of a “trial period,” the essence of a probationary period of employment fundamentally lies in the purpose sought to be attained by both the EE and the ER during said period. Espina v. CA. [same doctrine.] 2. Duration: Rule/Exception Dela Cruz v. NLRC. A probationary employee is one who, for a given period of time, is under observation and evaluation to determine whether or not he is qualified for permanent employment. During the probationary period, the employer is given the opportunity to observe the skill, competence and attitude of the employee while the latter seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment. The length of time is immaterial in determining the correlative right of both the ER and the EE in dealing with each other during said period. A probationary EE enjoys only temporary employment status; as long as the termination was made before the expiration of the 6-month probationary period, the ER was well within his rights to sever the EE-ER relationship. Cathay Pacific v. Marin. A probationary employee enjoys only a temporary employment status, not a permanent status. In general terms, he is terminable anytime as long as such termination is made before the expiration of the 6-month probationary period. The power of the ER to terminate an EE on probation is thus subject to the ff. conditions: (1) it must be exercised in accordance with the specific requirements of the contract; (2) the dissatisfaction on the part of the ER must be real and in good faith, not prejudicial so as to violate the contract or the law; and (3) there must be no unlawful discrimination in the dismissal. The burden of proving just or valid cause for dismissing an EE rests on the ER. 3. Extension of Contract Phil. Federation v. NLRC. It is an elementary rule in the law on labor relations that a probationary employee who is engaged to work beyond the probationary period of 6 month, as provided under LC, 281, as amended, or for any length of time set forh by the employer, shall be considered a regular employee. 4. Absorbed Employees Cebu Stevedoring v. Reg. Director. Private respondents could not be considered probationary employees because they were already well-trained in their respective functions. Respondent Gelig had been a clerk for CCAS for more than 10 years, while respondent Quijano, had slightly less than 10 years of service. 5. Standards DACODECO v. Pasawa. Under Article 281 of the Labor Code, a probationary employee can be legally dismissed either: (1) for a just cause; or (2) when he fails to qualify as a regular employee in accordance with the reasonable standards made known to him by the employer at the start of the employment. Nonetheless, the power of the employer to terminate the services of an employee on probation is not without limitations. First, this power must be exercised in accordance with the specific requirements of the contract. Second, the dissatisfaction on the part of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law. Third, there must be no unlawful discrimination in the dismissal. In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the employer. Here, petitioner did not present proof that respondent was duly notified, at the time of her employment, of the reasonable standards she needed to comply with for her continued employment. 6. Private School Teachers-Rule La Sallete of Santiago v. NLRC. Acceptance by a teacher of an administrative position offered to him or to which he might have aspired, does not operate as a relinquishment or loss by him of his security of tenure as a faculty member, except in cases of clear and explicit agreement to the contrary. || teachers, who are appointed as department heads or administrative officials do not normally, and should not expect to, acquire as second status of permanency, or an additional second security of tenure as such officer. Magis Young Achievers’ v. Manalo. Thus, for academic personnel in private elementary and secondary schools, it is only after one has satisfactorily completed the probationary period of three (3) school years and is rehired that he acquires full tenure as a regular or permanent employee. Termination of Employment A. General Concepts 1. Coverage LC, 278, supra. Book VI, Rule I, Sec. 1. Coverage. — The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not. 2. Security of Tenure

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
LC, 279. Security of tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21, 1989). LC, 277(b). Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. (As amended by Section 33, Republic Act No. 6715, March 21, 1989). Espina v. CA, supra. PDI v. Magtibay. Within the limited legal 6-month probationary period, probationary employees are still entitled to security of tenure. || all employees, be they regular or probationary, as expected to comply with company-imposed rules and regulations. a. Nature of Right/Rationale Alhambra Industries v. NLRC. Today, employment is no longer just an ordinary human activity. For most families the main source of ther livelihood, employment has now leveled off with property rights which no one may be deprived of without due process of law. || Termination of employment is not anymore a mere cessation or severance of contractual relationship but an economic phenomenon affecting member os the family. Thus explains why under the broad principles of social justice the dismissal of employees is adequately protected by the laws of the state. b. Management Prerogative Duldulao v. CA. To the employer belongs the prerogative to reassign an employee to any of its departments as it sees fit, provided that such reassignment is made in good faith. Reassignments made by management pending investigation of irregularities allegedly committed by an employee fall within the ambit of management prerogative, and the order of transfer prior to the submission of the employee’s answer cannot be deemed as a violation of her right to due process Pantoja v. SCA Hygiene. We held that work reassignment of an employee as a genuine business necessity is a valid management prerogative c. Requisites for Lawful dismissal: Concurrence of Substantive and Procedural due process Landtex v. CA. The requisites for a valid dismissal are (1) the dismissal must be for any of the causes in LC, 282, and (2) the opportunity to be heard and to defend oneself. Procedural due process in the dismissal of employees requires notice and hearing. The employer must furnish the employee 2 written notices before termination may be effected. The first notice apprises the employee of the particular acts or omissions for which his dismissal is sought, while the 3nd notice informs the employee of the ER’s decision to dismiss him. || The requirement of a hearing is complied with as long as there was an opportunity to be heard, and not necessarily that an actual hearing was conducted. Coke v. Valentine Garcia. In dismissing an employee, the employer has the burden of proving that the dismissed worker has been served two notices: (1) the first to inform the employee of the particular acts or omissions for which the employer seeks his dismissal, and (2) the second to inform the employee of his employer's decision to terminate him. The first notice must state that the employer seeks dismissal for the act or omission charged against the employee; otherwise, the notice does not comply with the rules. d. Normal consequences of illegality of dismissal LC, 279, supra. Golden Ace v. Talde. Thus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages || The normal consequences of respondents’ illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of backwages. e. Burden of proof LC, 277 (b), 3rd sentence. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off Chavez v. NLRC. As a rule, the ER bears the burden to prove that the dismissal was for a just and valid cause. Pepsi v. E.V. Santos. [Same doctrine] f. Measure of penalty TIPTEO v. CA. The affirmation of the penalties the CA imposed brings into focus the appellate court’s award of separation pay in consideration of her more than 10 years of service with TIP. Given the finding of guilt and the penalty imposed, no basis exists to support and justify this award. No court, not even this Court, can make an award that is not based on law. Neither can this award be justified even if viewed as a discretionary financial assistance, since this kind of award can be imposed only where the cause for dismissal is not serious misconduct or a cause reflecting on the employee’s moral character. The dismissal we affirm is precisely for serious misconduct. The causes cited reflect as well on Salon’s moral character. Hence, we delete any award of separation pay/financial assistance that the appellate court decreed. Jackqui Moreno v. SSC-R. Special circumstances were present in the case at bar which should have been properly taken into account in the imposition of the appropriate penalty. Moreno, in this case, had readily admitted her misconduct, which was undisputedly the first she has ever committed against the school. Her teaching abilities and administrative skills remained

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
apparently unaffected by her external teaching engagements, as she was found by the grievance committee to be one of the better professors in the Accounting Department[33] and she was even offered the Chairmanship of her college. [34] Also, the fact that Moreno merely wanted to alleviate her family's poor financial conditions is a justification that SSC-R failed to refute. SSC-R likewise failed to prove any resulting material damage or prejudice on its part as a consequence of Moreno's misconduct. The claim by SSC-R that the imposition of a lesser penalty would set a bad precedent[35] for the other faculty members who comply with the school policies is too speculative for this Court to even consider. Termination of Employment by Employee 1. Resignation Oriental Shipmanagement v. CA. Resignation is defined as the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and he has no other choice but to disassociate himself from his employment. Globe v. Crisologo. Employees resign for various reasons. A big salary is certainly no hindrance to a voluntary cessation of employment. Human resource studies reveal that various factors (in and out of the workplace) affect an EE’s employment decision. Lazaro v. Dacut. Here, the Labor Arbiter, the NLRC, and the Court of Appeals were unanimous in finding that the primary reason why Dacut and Tungala resigned was the vessel's alleged unseaworthiness as borne by their pleadings before the Labor Arbiter. Dacut and Tungala never mentioned that they resigned because they were being harassed by the company due to a complaint for violation of labor standards they had filed against it. a. Just causes LC, 285(b). An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes: 1. Serious insult by the employer or his representative on the honor and person of the employee; 2. Inhuman and unbearable treatment accorded the employee by the employer or his representative; 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and 4. Other causes analogous to any of the foregoing. b. Without just causes: Requisites LC, 285(a). An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. Consti, Art. III Sec 18(2). No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. Azcor v. NLRC. To constitute a resignation, it must be unconditional and with the intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. A’Prime Security v. NLRC. The supposed resignation was not acknowledged before a notary public, and was more of a form of a quitclaim and waiver than a resignation letter. 2. Performance of Military of Civic Duty LC, 286. When employment not deemed terminated. - The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. Book VI, Rule I, Sec. 12. Suspension of relationship. — The employer-employee relationship shall be deemed suspended in case of suspension of operation of the business or undertaking of the employer for a period not exceeding six (6) months, unless the suspension is for the purpose of defeating the rights of the employees under the Code, and in case of mandatory fulfillment by the employee of a military or civic duty. The payment of wages of the employee as well as the grant of other benefits and privileges while he is on a military or civic duty shall be subject to special laws and decrees and to the applicable individual or collective bargaining agreement and voluntary employer practice or policy. 3. Forced Resignation JSS Indochina v. Ferrer. The LA found that respondents’ “decision to resign from their employment were made by force of circumstances not attributable to their own fault,” and “it was not their fault that they were left out from among those workers who were considered for employment by the foreign employer.” Undoubtedly, ther termination of respondent’s services is without valid/just cause. Termination of Employment by Employer 1. Substantive Requirements – Just Causes a. Basis – Employer Right Gilles v. CA. Employment may be severed either by the employee or by the employer. An employer-initiated termination must be based on just or authorized causes enumerated in Articles 282, 283, 284, and 287 of the Labor Code. On the other hand, an employee may terminate his employment with or without just cause for any of the grounds enumerated under Article 285 of the Labor Code. || A valid termination of employment by the employer must comply with two requisites, namely: (1) the dismissal must be for any of the causes provided under Article 282 of the Labor Code; and (2) the employee must be afforded an opportunity to be heard and to defend himself. Substantively, the employer can terminate the services of an employee for just and valid causes, which must be supported by clear and convincing evidence; and procedurally, the employee must be given notice and an adequate opportunity to be heard before his actual dismissal for cause. Ocean East Agency v. NLRC. The exercise of an employer to regulate all aspects of employment must be in keeping with good faith and not be used as a pretext for defeating the rights of employees under the laws and applicable contracts. b. Just Cause – Requisites 2) Serious misconduct/willful disobedience (insubordination) LC, 282(a). Termination by employer. - An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work AMA v. Ignacio. The Labor Code provides that an employer may terminate the services of an employee for a just cause. Among the just causes in the Labor Code is serious misconduct. Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. The misconduct to be serious within the meaning of the

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C.

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
Labor Code must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless be in connection with the employee's work to constitute just cause for his separation. || In National Labor Relations Commission v. Salgarino, the Court stressed that "[i]n order to constitute serious misconduct which will warrant the dismissal of an employee under paragraph (a) of Article 282 of the Labor Code, it is not sufficient that the act or conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent." Bibiana Farms v. Lado. On the supposed fraudulent intent which became the basis for lack of trust and confidence, fraud as a just cause for terminating an employee’s services, particularly for lack of trust and loss of confidence, being defined as any act, omission or concealment which involves a breach of legal duty, trust or confidence justly reposed and is injurious to another, implies willfulness or wrongful intent. In fact, under Article 283 (c) of the Labor Code, the breach of trust must be willful and a breach is willful, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly and inadvertently (Atlas Consolidated Mining Development Corp. v. National Labor Relations Commission, 290 SCRA 479). In this case at bar, the release of the excess 400 empty sacks by herein petitioner could not and cannot be considered with fraudulent intent considering that it was not willful although done intentionally and knowingly but with justifiable reason. Areno v. Sky Cable. As a just cause for dismissal of an employee under Article 282 of the Labor Code, willful disobedience of the employer’s lawful orders requires the concurrence of two elements: (1) the employee’s assailed conduct must have been willful, i.e., characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge. Formantes v. Duncan. It is now axiomatic that if just cause for termination of employment actually exists and is established by substantial evidence in the course of the proceedings before the Labor Arbiter, the fact that the employer failed, prior to such termination, to accord to the discharged employee the right of formal notice of the charge or charges against him and a right to ventilate his side with respect thereto, will not operate to eradicate said just cause so as to impose on the employer the obligation of reinstating the employee and otherwise granting him such other concomitant relief as is appropriate in the premises. Gross and habitual neglect of duties LC, 282(b). Termination by employer. - An employer may terminate an employment for any of the following causes: (b) Gross and habitual neglect by the employee of his duties NBS v. CA. Gross negligence has been defined as the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. || Significantly, in order to constitute a just cause for the employee’s dismissal, the neglect of duties must not only be gross but also habitual. Thus, the single or isolated act of negligence does not constitute a just cause for the dismissal of the employee. Verily, assuming arguendo that private respondents were negligent, although we find otherwise, it could only be a single or an isolated act that cannot be categorized as habitual, hence, not a just cause for their dismissal. LBC v. Niño. Gross negligence is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected. || Although Mateo’s infraction was not habitual, we must take into account the substantial amount lost. Loss of trust and confidence LC, 282(c). Termination by employer. - An employer may terminate an employment for any of the following causes: (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative M+W Zander v. Enriquez. The first requisite for dismissal on the ground of loss of trust and confidence is that the employee concerned must be one holding a position of trust and confidence. There are two classes of positions of trust: managerial employees and fiduciary rank-and-file employees. Managerial employees are defined as those vested with the powers or prerogatives to lay down management policies and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions. They refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or a subdivision thereof, and to other officers or members of the managerial staff. Officers and members of the managerial staff perform work directly related to management policies of their employer and customarily and regularly exercise discretion and independent judgment. The second class or fiduciary rank-and-file employees consist of cashiers, auditors, property custodians, etc., or those who, in the normal exercise of their functions, regularly handle significant amounts of money or property. These employees, though rank-and-file, are routinely charged with the care and custody of the employer’s money or property, and are thus classified as occupying positions of trust and confidence. || The second requisite of terminating an employee for loss of trust and confidence is that there must be an act that would justify the loss of trust and confidence. To be a valid cause for dismissal, the loss of confidence must be based on a willful breach of trust and founded on clearly established facts. || Loss of trust and confidence stems from a breach of trust founded on a dishonest, deceitful or fraudulent act. In the case at bar, respondent did not commit any act which was dishonest or deceitful. She did not use her authority as the Administration Manager to misappropriate company property nor did she abuse the trust reposed in her by petitioners with respect to her responsibility to implement company rules. The most that can be attributed to respondent is that she influenced a single subordinate, without exerting any force or making any threats, not to report to work. This does not constitute dishonest or deceitful conduct which would justify the conclusion of loss of trust and confidence. Triumph Int’l v. Apostol. As previously mentioned, fraud or willful breach of the employer’s trust is a just cause for termination of employment under Article 282(c) of the Labor Code. This provision is premised on the fact that the employee concerned holds a position of trust and confidence, a situation which exists where such employee is entrusted by the employer with confidence on delicate matters, such as care and protection, handling or custody of the employer’s property. But, in order to constitute a just cause for dismissal, the act complained of must be “work-related” such as would show the employee concerned to be unfit to continue working for the employer. Ancheta v. Destiny Financial. The doctrine of loss of confidence requires the concurrence of the following: (1) loss of confidence should not be simulated; (2) it should not be used as a subterfuge for causes which are improper, illegal, or unjustified; (3) it may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; (4) it must be genuine, not a mere afterthought to justify an earlier action taken in bad faith; and (5) the employee involved holds a position of trust and confidence. || Loss of confidence, as a just cause for termination of employment, is premised on the fact that the employee concerned holds a position of responsibility, trust and confidence. He must be invested with

3)

4)

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
st

Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
confidence on delicate matters, such as the custody, handling, care, and protection of the employer's property and/or funds. In order to constitute a just cause for dismissal, the act complained of must be "work-related" such as would show the employee concerned to be unfit to continue working for the employer. Benjamin and Consolacion v. Amellar. To terminate the services of an employee for loss of trust and confidence, 33 two requisites must concur: (1) the employee concerned must be holding a position of trust and confidence and (2) there must be an act that would justify the loss of trust and confidence. 5) Commission of crime LC, 282(d). Termination by employer. - An employer may terminate an employment for any of the following causes: (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives 6) Analogous causes LC, 282(e). Termination by employer. - An employer may terminate an employment for any of the following causes: (e) Other causes analogous to the foregoing. Cathedral School v. NLRC. An evaluative review of the records of this case nonetheless supports a finding of a just cause for termination. The reason for which private respondent's services were terminated, namely, her unreasonable behavior and unpleasant deportment in dealing with the people she closely works with in the course of her employment, is analogous to the other "just causes" enumerated under the Labor Code Lim v. NLRC. We cannot but agree with PEPSI that “gross inefficiency falls within the purview of “other causes analogous to the foregoing,” and constitutes, therefore, just cause to terminate an employee under Article 282 of the Labor Code. One is analogous to another if it is susceptible of comparison with the latter either in general or in some specific detail; or has a close relationship with the latter. “Gross inefficiency” is closely related to “gross neglect,” for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business. In Buiser vs. Leogardo, this Court ruled that failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. St Luke’s v. Fabrigo. Gross inefficiency is closely related to gross neglect, for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business. As a just cause for an employee's dismissal, inefficiency or neglect of duty must not only be gross but also habitual. Thus, a single or isolated act of negligence does not constitute a just cause for the dismissal of the employee. Other causes 1) Abandonment Pentagon Steel v. CA. In evaluating a charge of abandonment, the jurisprudential rule is that abandonment is a matter of intention that cannot be lightly presumed from equivocal acts. To constitute abandonment, two elements must concur: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intent, manifested through overt acts, to sever the employer-employee relationship. The employer bears the burden of showing a deliberate and unjustified refusal by the employee to resume his employment without any intention of returning. Padilla Machine v. Javilgas. For abandonment to exist, it is essential (a) that the employee must have failed to report for work or must have been absent without valid or justifiable reason; and, (b) that there must have been a clear intention to sever the employer-employee relationship manifested by some overt acts.10 The establishment of his own shop is not enough proof that Javilgas intended to sever his relationship with his employer. 2) Courtesy resignation Batongbacal v. AB. While it may be said that the private respondent's call for courtesy resignations was prompted by its determination to survive, we cannot lend legality to the manner by which it pursued its goal. By directing its employees to submit letters of courtesy resignation, the bank in effect forced upon its employees an act which they themselves should voluntarily do. It should be emphasized that resignation per se means voluntary relinquishment of a position or office. 11 Adding the word "courtesy" did not change the essence of resignation. That courtesy resignations were utilized in government reorganization did not give private respondent the right to use it as well in its own reorganization and rehabilitation plan. There is no guarantee that all employers will not use it to rid themselves arbitrarily of employees they do not like, in the guise of "streamlining" its organization. On the other hand, employees would be unduly exposed to outright termination of employment which is anathema to the constitutional mandate of security of tenure. 3) Change of ownership Manlimos v. NLRC. Where such transfer of ownership is in good faith, the transferee is under no legal duty to absorb the transferor employees as there is no law compelling such absorption. The most that the transferee may do, for reasons of public policy and social justice, is to give preference to the qualified separated employees in the filling of vacancies in the facilities of the purchaser. 14 Since the petitioners were effectively separated from work due to a bona fide change of ownership and they were accordingly paid their separation pay, which they freely and voluntarily accepted, the private respondent corporation was under no obligation to employ them; it may, however, give them preference in the hiring. The private respondent in fact hired, but on probationary basis, all the petitioners, except Rosario Cuarto. The non-hiring of Cuarto was legally permissible. Elcee Farms v. NLRC. In the present case, Elcee Farms effectively ceased to operate and manage Hacienda Trinidad when, through Garnele, it leased the hacienda to Daniel Hilado. The validity of the aforementioned lease was not questioned by any of the parties. There is no question that the lease to Daniel Hilado effectively terminated the employer-employee relationship between Elcee Farms and the farmworkers. Private respondents Pampelo Semillano and Roel Benignos testified that HILLA took possession of the hacienda in 1990 and managed the same. 24 This was corroborated by the testimony of Anonio Sidayon, the administrator of HILLA.25 After the said lease was executed, the employer-employee relationship between the farm employees and Elcee Farms was severed. The lease agreement between Garnele and Daniel Hilado identified the employees who will continue working with the new management and stipulated that workers who were not in the list, whether new or employed in the past, will not be employed by the lessee.26 The lease contract even specified that Daniel Hilado will only be liable for all future labor cases, the cause of which arose during or by virtue of the sublease.27 Clearly, there was a cessation of operations of Elcee Farms, which renders it liable for separation pay to its employees, under Section 283 of the Labor Code. 4) Habitual absenteeism/tardiness Manila Electric v. NLRC. This cause includes gross inefficiency, negligence and carelessness. Such just causes is derived from the right of the employer to select and engage his employees. For indeed, regulation of manpower by the company

c.

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
clearly falls within the ambit of management prerogative. This court had defined a valid exercise of management prerogative as one which covers: hiring, work assignment, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers, and the discipline, dismissal and recall of workers. Except as provided for, or limited by, special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment. The penchant of private respondent to continually incur unauthorized absences and/or a violation of petitioner's sick leave policy finally rendered his dismissal as imminently proper. R.B. Michael Press v. Galit. Fact that the numerous infractions of respondent have not been immediately subjected to sanctions cannot be interpreted as condonation of the offenses or waiver of the company to enforce company rules; management prerogative to discipline employees and impose punishment is a legal right which cannot, as a general rule, be impliedly waived. // elements of willful disobedience to be a valid cause for dismissal: (1) the employee’s adssailed conduct must have been willful; (2) the order violated must have been reasonable, lawful, made known to employee, and must pertain to the duties which he had been engaged to discharge. 5) Fixed-term employment Medenilla v. PVB. As held by this Court, 9 if the contract is for a fixed term and the employee is dismissed without just cause, he is entitled to the payment of his salaries corresponding to the unexpired portion of the employment contract. In the case under scrutiny, the unpaid wages should be reckoned on February 18, 1991 to January 1, 1992. January 1, 1992 is considered the date of expiration of the period of liquidation since January 2, 1992 was the effectivity of RA 7169, entitled "An Act to Rehabilitate the Philippine Veterans Bank". Pamantasan v. CSC. The finding of the PSLMC that the non-renewal by petitioner of the questioned contracts of employment had been motivated by private respondents' union activities is conclusive on the parties. Indeed, this Court's resolution in G.R. No. 105157 (PLM vs. PSLMC et al.) which has long become final and executory should now render that matter a fait accompli. 6) Past offenses Janssen v. Silayro. In this case, petitioner had not been able to identify an act of dishonesty, misappropriation, or any illicit act, which the respondent may have committed in connection with the erroneously reported product samples. While respondent was admittedly negligent in filling out his August and September 1998 DCR, his errors alone are insufficient evidence of a dishonest purpose. Since fraud implies willfulness or wrongful intent, the innocent non-disclosure of or inadvertent errors in declaring facts by the employee to the employer will not constitute a just cause for the dismissal of the employee.37 In addition, the subsequent acts of respondent belie a design to misappropriate product samples. So as to escape any liability, respondent could have easily just submitted for audit only the number of product samples which he reported. Instead, respondent brought all the product samples in his custody during the audit and, afterwards, honestly admitted to his negligence. Negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.38 To this Court, respondent did not commit any willful violation, rather he merely failed to exercise the standard care required of a territory representative to carefully count the number of product samples delivered to him in August and September 1998. Ramoran v. Jardine. Overtime slip anomaly. 7) Habitual infractions Gustilo v. Wyeth. It has become clear that respondent Gustilo is a habitual offender whose numerous contraventions of company rules has left Wyeth with no choice but to terminate him based on Article 282 of the Labor Code, gross and habitual neglect by the employee of his duties, being a valid cause for termination. 8) Immorality Santos v. NLRC. On the outset, it must be stressed that to constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in light of the prevailing norms of conduct and applicable laws. American jurisprudence has defined immorality as a course of conduct which offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and to elevate, 13 the same including sexual misconduct. Thus, in petitioner's case, the gravity and seriousness of the charges against him stem from his being a married man and at the same time a teacher. We cannot overemphasize that having an extra-marital affair is an affront to the sanctity of marriage, which is a basic institution of society. Even our Family Code provides that husband and wife must live together, observe mutual love, respect and fidelity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Our laws, in implementing this constitutional edict on marriage and the family underscore their permanence, inviolability and solidarity. As a teacher, petitioner serves as an example to his pupils, especially during their formative years and stands in loco parentis to them. To stress their importance in our society, teachers are given substitute and special parental authority under our laws. 9) Conviction/commission of a crime Sampaguita v. NLRC. The private respondent’s conviction of the crime of theft of property belonging to the petitioner has affirmed the existence of a valid ground for her dismissal and thus removed the justification for the administrative decision ordering her reinstatement with back wages. Nevertheless, the petitioner is still subject to sanction for its failure to accord the private respondent the right to an administrative investigation in conformity with the procedural requirements of due process. Bughaw v. Treasure Island. The charge of drug abuse inside the company’s premises and during working hours against petitioner constitutes serious misconduct, which is one of the just causes for termination. Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not merely an error in judgment. The misconduct to be serious within the meaning of the Act must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless, in connection with the work of the employee, constitute just cause for his separation. This Court took judicial notice of scientific findings that drug abuse can damage the mental faculties of the user. It is beyond question therefore that any employee under the influence of drugs cannot possibly continue doing his duties without posing a serious threat to the lives and property of his co-workers and even his employer. 10) Qualification requirements SLMCEA-AFW v. NLRC. No malice or ill-will can be imputed upon private respondent as the separation of petitioner Santos was undertaken by it conformably to an existing statute. It is undeniable that her continued employment without the required Board certification exposed the hospital to possible sanctions and even to a revocation of its license to

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
operate. Certainly, private respondent could not be expected to retain petitioner Santos despite the inimical threat posed by the latter to its business. d. Constructive dismissal PVB v. NLRC. In constructive dismissal cases, the employer has the burden of proving that its conduct and action or the transfer of an employee are for valid and legitimate grounds such as genuine business necessity. Particularly, for a transfer not to be considered a constructive dismissal, the employer must be able to show that such transfer is not unreasonable, inconvenient, or prejudicial to the employee. Failure of the employer to overcome this burden of proof taints the employee’s transfer as a constructive dismissal. Peñaflor v. Outdoor Clothing. While the letter states that Peñaflor’s resignation was irrevocable, it does not necessarily signify that it was also voluntarily executed. The fact of filing a resignation alone does not shift the burden of proving that the employee’s dismissal was for a just and valid cause from the employer to the employee. As ruled in Mora v. Avesco, should the employer interpose the defense of resignation, it is still incumbent upon the employer to prove that the employee voluntarily resigned. e. Transfer Westmont Pharma v. Samaniego. Westmont and Unilab failed to discharge this burden. Samaniego was unceremoniously transferred from Isabela to Metro Manila. We hold that such transfer is economically and emotionally burdensome on his part. He was constrained to maintain two residences – one for himself in Metro Manila, and the other for his family in Tuguegarao City, Cagayan. Worse, immediately after his transfer to Metro Manila, he was placed "on floating status" and was demoted in rank, performing functions no longer supervisory in nature. There may also be constructive dismissal if an act of clear insensibility or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.7 This was what happened to Samaniego. SMC v. Potillas. The records show that respondent was not singled out for the transfer. Respondent's transfer was the effect of the integration of the functions of the Mandaue Brewery - Materials Management and the Physical Distribution group into a unified logistics organization, the VisMin Logistics Operations. || The employer exercises the prerogative to transfer an employee for valid reasons and according to the requirements of its business, provided the transfer does not result in demotion in rank or diminution of the employee's salary, benefits, and other privileges. Herida v F&C Pawnshop. Jurisprudence recognizes the exercise of management prerogative to transfer or assign employees from one office or area of operation to another, provided there is no demotion in rank or diminution of salary, benefits, and other privileges, and the action is not motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause. || To determine the validity of the transfer of employees, the employer must show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Should the employer fail to overcome this burden of proof, the employee's transfer shall be tantamount to constructive dismissal. f. Promotion Phil. Telegraph v. CA. Clearly, the transfer of the complainants is not unreasonable nor does it involve demotion in rank. They are being moved to branches where the complainants will function with maximum benefit to the company and they were in fact promoted not demoted from a lower job-grade to a higher job-grade and receive even higher salaries than before. Thus, transfer of the complainants would not also result in diminution in pay benefit and privilege since the salaries of the complainant would be receiving a bigger salary if not the same salary plus additional special relocation package. Although the increase in the pay is not significant this however would be translated into an increase rather than decrease in their salary because the complainants who were transferred from the city to the province would greatly benefit because it is of judicial notice that the cost of living in the province is much lower than in the city. This would mean a higher purchasing power of the same salary previously being received by the complainants. g. Preventive suspension Book V, Rule XXIII, Sec 8. Book V, Rule XXIII, Sec 9. Note: At present, no specific rule governs preventive suspension Gatbonton v. NLRC. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. || Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Pido v. NLRC. As above-quoted Section 9 of the said Implementing Rules expressly provides, in the event the employer chooses to extend the period of suspension, he is required to pay the wages and other benefits due the worker and the worker is not bound to reimburse the amount paid to him during the extended period of suspension even if, after the completion of the hearing or investigation, the employer decides to dismiss him. Substantive Requirements – Business Related Causes LC, 283. Closure of establishment and reduction of personnel. - The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. Book VI, Rule I, Sec. 9. Termination pay. — (a) An employee shall be entitled to termination pay equivalent to at least one month's salary for every year of service a fraction of at least six (6) months being considered as one whole year, in case of termination of his employment due to the installation of labor-saving devices or redundancy. (b) Where the termination of employment is due to retrenchment to prevent losses and in case of closure or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, or where the employment is prohibited by law or is prejudicial to his health or to the health of his co-employees, the employee shall be entitled to termination

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
pay equivalent to at least one-half month's pay for every year of service, a fraction of at least six months being considered as one whole year. (c) The termination pay provided in the Section shall in no case be less than the employee's one month pay. a. Basis – Employer right Edge Apparel v. NLRC. The law acknowledges the right of every business entity to reduce its work force if such measure is made necessary or compelled by economic factors that would otherwise endanger its stability or existence. In exercising its right to retrench employees, the firm may choose to close all, or a part of, its business to avoid further losses or mitigate expenses. Redundancy exists where the services of an employee are in excess of what would reasonably be demanded by the actual requirements of the enterprise. A position is redundant when it is superfluous, and superfluity of a position or positions could be the result of a number of factors, such as the overhiring of workers, a decrease in the volume of business or the dropping of a particular line or service previously manufactured or undertaken by the enterprise. An employer has no legal obligation to keep on the payroll employees more than the number needed for the operation of the business. Retrenchment, in contrast to redundancy, is an economic ground to reduce the number of employees. In order to be justified, the termination of employment by reason of retrenchment must be due to business losses or reverses which are serious, actual and real. 14 Not every loss incurred or expected to be incurred by the employer will justify retrenchment, 15 since, in the nature of things, the possibility of incurring losses is constantly present, in greater or lesser degree, in carrying on the business operations. 16 Retrenchment is normally resorted to by management during periods of business reverses and economic difficulties occasioned by such events as recession, industrial depression, or seasonal fluctuations. 17 It is an act of the employer of reducing the work force because of losses in the operation of the enterprise, lack of work, or considerable reduction on the volume of business. 18 Retrenchment is, in many ways, a measure of last resort when other less drastic means have been tried and found to be inadequate. 19 A lull caused by lack of orders or shortage of materials must be of such nature as would severely affect the continued business operations of the employer to the detriment of all and sundry if not properly addressed. The institution of "new methods or more efficient machinery, or of automation" is technically a ground for termination of employment by reason of installation of labor-saving devices but where the introduction of these methods is resorted to not merely to effect greater efficiency in the operations of the business but principally because of serious business reverses and to avert further losses, the device could then verily be considered one of retrenchment. The payment of separation pay would be due when a dismissal is on account of an authorized cause. The amount of separation pay depends on the ground for the termination of employment. A dismissal due to the installation of labor saving devices, redundancy (Article 283) or disease (Article 284), entitles the worker to a separation pay equivalent to "one (1) month pay or at least one (1) month pay for every year of service, whichever is higher." When the termination of employment is due to retrenchment to prevent losses, or to closure or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay is only an equivalent of "one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher." In the above instances, a fraction of at least six (6) months is considered as one (1) whole year. Business-related or authorized causes 1) Installation of labor-saving devices 2) Retrenchment to prevent losses FASAP v. PAL (2008). FASAP v. PAL (2009). The strike was a temporary occurrence that did not necessitate the immediate and sweeping retrenchment of 1,400 cabin or flight attendants. By PAL’s own account, some of the striking pilots went back to work in July 1998, or less than one month after the strike began. Moreover, PAL admitted that it remedied the situation by employing "management pilots."28 It could have hired new pilots as well. Certainly, it could have implemented the costcutting measures being discussed as a temporary measure to obviate the adverse effects of the pilots’ strike. There was no reason to drastically implement a permanent retrenchment scheme in response to a temporary strike, which could have ended at any time, or remedied promptly, if management acted with alacrity. Juxtaposed with its failure to implement the required cost-cutting measures, the retrenchment scheme was a knee-jerk solution to a temporary problem that beset PAL at the time. HEPI v. SMH-NUWHRAIN. The constitution afford full protection to labor, but the policy is not to be blindly followed at the expense of capital. Always, the interests of both sides must be balanced in light of the evidence adduced and the peculiar circumstances surrounding each case. 3) Redundancy Andrada v. NLRC. Thus, simply put, redundancy exists when the number of employees is in excess of what is reasonably necessary to operate the business. The declaration of redundant positions is a management prerogative. The determination that the employee’s services are no longer necessary or sustainable and therefore properly terminable is an exercise of business judgment by the employer. The wisdom or soundness of this judgment is not subject to the discretionary review of the Labor Arbiter and NLRC. Smart v. Astorga. The characterization of an employee’s services as superfluous or no longer necessary and, therefore, properly terminable, is an exercise of business judgment on the part of the employer. The wisdom and soundness of such characterization or decision is not subject to discretionary review provided, of course, that a violation of law or arbitrary or malicious action is not shown Cabigting v. San Miguel Foods. Finally, it is noted that the position of warehouseman and inventory controller is still existing up to date. The nature of the controversy where the parties to this case were engaged is not of such nature that would spawn a situation where the relations are severely strained between them as would bar the complainant to his continued employment. Neither may it be said that his position entails a constant communion with the respondent such that hostilities may bar smooth interactions between them. 4) Closure of business Eastridge Golf Club v. ELU-Super. The decision to close business is a management prerogative exclusive to the employer, the exercise of which no court or tribunal can meddle with, except only when the employer fails to prove compliance with the requirements of Art. 283, to wit: a) that the closure/cessation of business is bona fide, i.e., its purpose is to advance the interest of the employer and not to defeat or circumvent the rights of employees under the law or a valid agreement; b)

b.

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
that written notice was served on the employees and the DOLE at least one month before the intended date of closure or cessation of business; and c) in case of closure/cessation of business not due to financial losses, that the employees affected have been given separation pay equivalent to ½ month pay for every year of service or one month pay, whichever is higher. || It should be borne in mind that where the closure of business is found to be in bad faith, the dismissal of the employees shall be declared illegal and the employer held liable for their reinstatement and payment of full backwages,[56] unless reinstatement is no longer feasible in which case the employer shall be liable for full backwages as well as separation pay at the rate of one month salary for every year of service, with a fraction of at least six months being considered as one year. || If the closure of business due to serious business losses or financial reverses is shown to be in good faith, the resultant dismissal of the employees shall be upheld, with no separation benefits due them.[58] If the closure of business is not due to serious business losses or financial reverses but it is shown to be in good faith, the resultant dismissal of the employees will still be upheld but the latter shall be entitled to separation pay at the rate of ½ month pay for every year of service or one month pay, whichever is higher. Temporary closure/bona fide suspension of operations JPL Mktg. v. CA. Art. 286 of the Labor Code allows the bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, wherein an employee/employees are placed on the so-called “floating status.” When that “floating status” of an employee lasts for more than six months, he may be considered to have been illegally dismissed from the service. Thus, he is entitled to the corresponding benefits for his separation, and this would apply to suspension either of the entire business or of a specific component thereof.

5)

3.

D.

Disease LC, 284. Disease as ground for termination. - An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year. Sy v. CA. However, in order to validly terminate employment on this ground, Book VI, Rule I, Section 8 of the Omnibus Implementing Rules of the Labor Code requires: Sec. 8. Disease as a ground for dismissal- Where the employee suffers from a disease and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees, the employer shall not terminate his employment unless there is a certification by competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment. If the disease or ailment can be cured within the period, the employer shall not terminate the employee but shall ask the employee to take a leave. The employer shall reinstate such employee to his former position immediately upon the restoration of his normal health. (Italics supplied). As this Court stated in Triple Eight integrated Services, Inc. vs. NLRC,31 the requirement for a medical certificate under Article 284 of the Labor Code cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary determination by the employer of the gravity or extent of the employee’s illness and thus defeat the public policy in the protection of labor. || Since the burden of proving the validity of the dismissal of the employee rests on the employer, the latter should likewise bear the burden of showing that the requisites for a valid dismissal due to a disease have been complied with. In the absence of the required certification by a competent public health authority, this Court has ruled against the validity of the employee’s dismissal Crayons v. Pula. For a dismissal on the ground of disease to be considered valid, two requisites must concur: (a) the employee must be suffering from a disease which cannot be cured within six months and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees; and (b) a certification to that effect must be issued by a competent public health authority. The burden falls upon the employer to establish these requisites, and in the absence of such certification, the dismissal must necessarily be declared illegal. As succinctly stressed in Tan v. NLRC, “it is only where there is a prior certification from a competent public authority that the disease afflicting the employee sought to be dismissed is of such nature or at such stage that it cannot be cured within six (6) months even with proper medical treatment that the latter could be validly terminated from his job.” || Without the required certification, the characterization or even diagnosis of the disease would primarily be shaped according to the interests of the parties rather than the studied analysis of the appropriate medical professionals. The requirement of a medical certificate under Article 284 cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary determination by the employer of the gravity or extent of the employee's illness and thus defeat the public policy in the protection of labor. 4. Enforcement of Union Security Clause in the CBA Inguillo v. FPSI. In terminating the employment of an employee by enforcing the Union Security Clause, the employer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the union's decision to expel the employee from the union or company. Procedural Requirements 1. In general: essential elements of due process a. Compliance with the twin requirements of notice and hearing PLDT v. Berbano. Dismissal from service of an employee is valid if the following requirements are complied with: (a) substantive due process which requires that the ground for dismissal is one of the just or authorized causes enumerated in the Labor Code, and (b) procedural due process which requires that the employee be given an opportunity to be heard and defend himself.17 The employee must be furnished two written notices — the first notice apprises the employee of the particular act or omission for which his dismissal is sought, and the second notice informs the employee of the employer’s decision to dismiss him. Babon v. NLRC & Magic Sales. In the dismissal of employees, it has been consistently held that the twin requirements of notice and hearing are essential elements of due process. The employer must furnish the worker with two written notices before termination of employment can be legally effected: (1) a notice apprising the employee of the particular acts or omissions for which his dismissal is sought, and (2) a subsequent notice informing the employee of the employer’s decision to dismiss him. With regard to the requirement of a hearing, the essence of due process lies simply in an opportunity to be heard, and not that an actual hearing should always and indispensably be held.33 || Likewise, there is no requirement that the notices of dismissal themselves be couched in the form and language of judicial or quasi-judicial decisions. What is required is that the employer conduct a formal investigation process, with notices duly served on the employees informing them of the fact of investigation, and subsequently, if warranted, a separate notice of dismissal. 34

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
Through the formal investigatory process, the employee must be accorded the right to present his or her side, which must be considered and weighed by the employer. The employee must be sufficiently apprised of the nature of the charge, so as to be able to intelligently defend himself or herself against the charges b. Liability for non-compliance with procedural reqs. Mantle Trading v. NLRC. Accordingly, it is wise to hold that: (1) if the dismissal is based on a just cause under Article 282 but the employer failed to comply with the notice requirement, the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputable to the employee; and (2) if the dismissal is based on an authorized cause under Article 283 but the employer failed to comply with the notice requirement, the sanction should be stiffer because the dismissal process was initiated by the employer's exercise of his management prerogative Agabon v. NLRC. Where the dismissal is for a just cause, as in the instant case, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights, as ruled in Reta v. National Labor Relations Commission. The indemnity to be imposed should be stiffer to discourage the abhorrent practice of "dismiss now, pay later," which we sought to deter in the Serrano ruling. The sanction should be in the nature of indemnification or penalty and should depend on the facts of each case, taking into special consideration the gravity of the due process violation of the employer. || Under the Civil Code, nominal damages is adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.  PhP 30,000 nominal damages Serrano v. NLRC. We hold, therefore, that, with respect to Art. 283 of the Labor Code, the employer's failure to comply with the notice requirement does not constitute a denial of due process but a mere failure to observe a procedure for the termination of employment which makes the termination of employment merely ineffectual. It is similar to the failure to observe the provisions of Art. 1592, in relation to Art. 1191, of the Civil Code34 in rescinding a contract for the sale of immovable property. Under these provisions, while the power of a party to rescind a contract is implied in reciprocal obligations, nonetheless, in cases involving the sale of immovable property, the vendor cannot exercise this power even though the vendee defaults in the payment of the price, except by bringing an action in court or giving notice of rescission by means of a notarial demand.  award for full backwages. Right to counsel Salaw v. NLRC. The investigation of petitioner Salaw by the respondent Bank' investigating committee violated his constitutional right to due process, in as much as he was not given a chance to defend himself, as provided in Rule XIV, Book V of the Implementing Rules and Regulations of the Labor Code governing the dismissal of employees. Section 5 of the said Rule requires that "the employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires." 11 (Emphasis supplied.) Here petition was perfunctorily denied the assistance of counsel during investigation to be conducted by the PDIC. No reasons preferred which vitiated the denial with irregularity and unfairness. Notice King of Kings v. Mamac. To clarify, the following should be considered in terminating the services of employees: (1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees. (2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement. (3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment. Magro v. Hernandez. This notice will afford the employee an opportunity to avail all defenses and exhaust all remedies to refute the allegations hurled against him for what is at stake is his very life and limb his employment. Otherwise, the employee may just disregard the notice as a warning without any disastrous consequence to be anticipated. Absent such statement, the first notice falls short of the requirement of due process. One’s work is everything, thus, it is not too exacting to impose this strict requirement on the part of the employer before the dismissal process be validly effected. This is in consonance with the rule that all doubts in the implementation and interpretation of the provisions of the Labor Code, including its implementing rules and regulations, shall be resolved in favor of labor. Hearing a. Hearing Perez v. PTTC. Respondents’ illegal act of dismissing petitioners was aggravated by their failure to observe due process. To meet the requirements of due process in the dismissal of an employee, an employer must furnish the worker with two written notices: (1) a written notice specifying the grounds for termination and giving to said employee a reasonable opportunity to explain his side and (2) another written notice indicating that, upon due consideration of all circumstances, grounds have been established to justify the employer's decision to dismiss the employee Technol v. NLRC. What we see in the records belie Amular’s claim of denial of procedural due process. He chose not to present his side at the administrative hearing. In fact, he avoided the investigation into the charges against him by filing his illegal dismissal complaint ahead of the scheduled investigation. Under these facts, he was given the opportunity to be heard and he cannot now come to us protesting that he was denied this opportunity. To belabor a point the Court has repeatedly made in employee dismissal cases, the essence of due process is simply an opportunity to be heard; it is the denial of this opportunity that constitutes violation of due process of law b. Use of position paper

2.

3.

4.

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
Seastar Marine services v. Bul-an. A formal trial-type hearing is not at all times and in all instances essential to due process. It is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based. Decision/Award Consti, Art. VIII, Sec. 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. ABD Overseas v. NLRC. On decision: more than being stylish, a decision or resolution, especially one resolving an appeal, should directly meet the issues for resolution; otherwise, the appeal would be pointless. It is immaterial that the NLRC is a quasi-judicial body and not a regular court. In any controversy, the appellant needs enlightenment on the issues that befuddle him. Accordingly, assuming that petitioner should indeed be liable to Macaraya, the NLRC should have discussed why Section 6, Rule I, Book III of the POEA Rules should be applied notwithstanding the factual circumstances pointed out by petitioner. As it was, petitioner's theory that the case does not merit the application of Section 6, Rule I, Book III of the POEA Rules was merely glossed over, such that it was left with no other recourse but to file a motion for reconsideration and, after its denial, the instant petition. On award: MARS impleaded petitioner in the case after it had been submitted for decision and one-and-a-half years after it had filed its answer. During this hiatus, the case lay dormant in the POEA. It should be noted that petitioner became the accredited recruitment agency on September 3, 1990, two months after MARS had filed its answer to the complaint. The POEA's inaction ad interim provided MARS with an opportunity to escape liability. Petitioner shall pay Macaraya the amount due her under the assailed POEA decision, without prejudice to its right to be reimbursed by MARS under the provision of the Civil Code that "(w)hoever pays for another may demand from the debtor what he has paid." Burden of proof Macasero v. Southern Industrial. In illegal dismissal cases, the onus of proving that the employee was not dismissed or, if dismissed, that the dismissal was not illegal, rests on the employer, failure to discharge which would mean that the dismissal is not justified and, therefore, illegal. Degree of proof/substantial evidence De Guzman v. NLRC. It is well-settled that for a dismissal to be completely valid and faultless, the employer must show that the dismissal was for a just or authorized cause and that it observed procedural due … The burden of proof is on the employer to show an unequivocal intent on the part of the employee to discontinue employment. || It is settled that once the employee has set out with particularity in his complaint, position paper, affidavits and other documents the labor standard benefits he is entitled to, and which he alleged that the employer failed to pay him, it becomes the employer’s burden to prove that it has paid these money claims. One who pleads payment has the burden of proving it, and even where the employees must allege nonpayment, the general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to prove nonpayment… It is respondent company which has the burden of proof to show, by substantial evidence, the payment of petitioner’s money claims. Kulas v. Alcoseba. A careful examination of the inventory sheets relied upon by [petitioners] readily shows the number of items or merchandise sold for a given period, the price per unit sold and the total amount of purchase for that given period. Notably absent is the list of merchandise received for sale and display by the sales clerks for a given period, or the stocks on hand, in order to coincide with the actual items sold as shown on the inventory sheet. Certainly, [petitioners] cannot continue raising a finger and insist that the sales proceeds were misappropriated when they could not show proof of the stocks on hand in the first place. To reiterate, it must not be an ordinary list of the stocks on hand, but must contain a certification from the sales clerks that they indeed received such items for sale and display at the boutique branch where they were assigned. Worth mentioning at this point is the allegation of the [respondents] that upon their assumption at the Ayala Center branch, the management did not conduct an actual inventory as well as a proper turnover of stocks. This must therefore explain the lapse in the sales inventory conducted by [petitioners]. Verily, [petitioners] are guilty of contributory negligence for failure to conduct a proper turnover of stocks in the boutique upon [respondents’] assumption therein. Prescription CC, 1146. The following actions must be instituted within four years: (1) Upon an injury to the rights of the plaintiff; (2) Upon a quasi-delict; However, when the action arises from or out of any act, activity, or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year. (As amended by PD No. 1755, Dec. 24, 1980.) LC, 291. Money claims. - All money claims arising from employer-employee relations accruing during the effectivity of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred. All money claims accruing prior to the effectivity of this Code shall be filed with the appropriate entities established under this Code within one (1) year from the date of effectivity, and shall be processed or determined in accordance with the implementing rules and regulations of the Code; otherwise, they shall be forever barred. Workmen’s compensation claims accruing prior to the effectivity of this Code and during the period from November 1, 1974 up to December 31, 1974, shall be filed with the appropriate regional offices of the Department of Labor not later than March 31, 1975; otherwise, they shall forever be barred. The claims shall be processed and adjudicated in accordance with the law and rules at the time their causes of action accrued. Victory Liner v. Race. The four-year prescriptive period shall commence to run only upon the accrual of a cause of action of the worker. It is settled that in illegal dismissal cases, the cause of action accrues from the time the employment of the worker was unjustly terminated.22 Thus, the four-year prescriptive period shall be counted and computed from the date of the employee’s dismissal up to the date of the filing of complaint for unlawful termination of employment. || Extra: The respondent must be considered as unjustly terminated from work in January 1998 since this was the first time he was informed by the petitioner that he was deemed resigned from his work. During that same occasion, the petitioner, in fact, tried to convince the respondent to accept an amount of P50,000.00 as a consolation for his dismissal but the latter rejected it. 25 Thus, it was only at this time that the respondent’s cause of action accrued. Consequently, the respondent’s filing of complaint for illegal dismissal on 1 September 1999 was well within the four-year prescriptive period. Anabe v. Asian Const. Article 1150. The time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought. (emphasis supplied)  The day the action may be brought is the day a claim started as a legal possibility.17 In the present case, the day came when petitioner learned of Asiakonstrukt’s deduction from his salary of the amount of advances he had received but had, by his claim, been settled, the same having been reflected in his payslips, hence, it is assumed that he learned of it at the time he received his monthly paychecks. Quitclaim

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
Goodrich Mfg. v. Atiro. It is true that the law looks with disfavor on quitclaims and releases by employees who have been inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities and frustrate just claims of employees.14 In certain cases, however, the Court has given effect to quitclaims executed by employees if the employer is able to prove the following requisites, to wit: (1) the employee executes a deed of quitclaim voluntarily; (2) there is no fraud or deceit on the part of any of the parties; (3) the consideration of the quitclaim is credible and reasonable; and (4) the contract is not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. Talam v. NLRC. The CA erred in glossing over the legal effect of Talam's release and quitclaim. It should not have been nullified. Talam was not an unlettered employee;50 he was an information technology consultant and must have been fully aware of the consequences of what he was entering into.51 The quitclaim was a voluntary act as there is no showing that he was coerced into executing the instrument; he received a valuable consideration for his less than two years of service with the company. Thus, from all indications, the release and quitclaim was a valid and binding undertaking that should have been recognized by the labor authorities and the CA. || With the foregoing backdrop in Talam’s execution of the release and quitclaim, we find the filing of the illegal dismissal case tainted with bad faith on his part for he has already "released and forever discharged" the company "from any and all claims of damages and other liability, any from any and all manner of claims, cause or causes of actions whatsoever x x x against them.”|| Given the release and quitclaim, we do not see how TSFI can be made to answer for failure to afford Talam procedural due process. The release and quitclaim, to our mind, erased whatever infirmities there might have been in the notice of termination as Talam had already voluntarily accepted his dismissal through the release and quitclaim. With this acceptance, the written notice became academic; the notice, after all, is merely a protective measure put in place by law and serves no useful purpose after protection has been assured. We thus find no basis for the conclusion that TSFI violated procedural due process and should pay nominal damages. Dismissal of case, purely on technical ground – frowned upon Quintano v. NLRC. It is well to remember that this Court, in not a few cases, has consistently held that cases should be determined on the merits, after full opportunity to all parties for ventilation of their causes and defense, rather than on technicality or some procedural imperfections.9 In so doing, the ends of justice would be better served.10 The dismissal of cases purely on technical grounds is frowned upon and the rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure, not override, substantial justice, and thereby defeat their very ends. 11 Indeed, rules of procedure are mere tools designed to expedite the resolution of cases and other matters pending in court. A strict and rigid application of the rules that would result in technicalities that tend to frustrate rather than promote substantial justice must be avoided. Criminal cases Lacorte v. Inciong. As to the dropping of the criminal charges, the respondents correctly ruled that same does not automatically make him innocent of stealing and breaching the fiduciary duties he held with his employer. In assessing the evidence before him, the fiscal considers the basic rule that to successfully convict the accused the evidence must be beyond reasonable doubt and not merely substantial. On the other hand, to support findings and conclusion of administrative bodies only substantial evidence is required. Hence, it does not follow that once the fiscal dismisses the complaint for qualified theft, respondent officials of the Ministry of Labor should also have decided in favor of petitioner. The conviction of an employee in a criminal case is not indispensable to warrant his dismissal (from employment), and the fact that a criminal complaint against the employee has been dropped by the fiscal is not binding and conclusive upon a labor tribunal. Quiambao v. NLRC. There is no substantial evidence, if at all, to justify an allegation of “loss of confidence.” It appears that the only reason why petitioner's dismissal was upheld (by the NLRC) was due to the filing of criminal and civil charges against Quiambao and these were the only consideration in justifying employer's alleged loss of trust and confidence. NOTABLY, however, both the Estafa case and the collection suit have been dismissed by the trial court and the acquittal and dismissal, respectively, were not merely based on reasonable doubt. Not a modicum of evidence was presented and proved to support the cases filed against petitioner! Consequently, these could not (possibly) support employer’s claim of loss of trust and confidence. This case is an exception to the rule that acquittal in criminal cases is not a bar to termination of employment on account of loss of trust and confidence; because in the case at bar, there is an entire want of evidence to justify the dismissal of the petitioner and not merely that the trial court failed to convict on account of reasonable doubt. Good faith of employee Cruz v. Coke. Several factors militate against Cruz’s claim of good faith. His length of service, which spans almost fifteen (15) years, works against his favor in this case. We have held that the longer an employee stays in the service of the company, the greater is his responsibility for knowledge and compliance with the norms of conduct and the code of discipline in the company. Considering that petitioner has worked at respondent company for a long period of time, one expects that securing the proper documents before getting Coke products out of the plant would be automatic for him. Penalty of dismissal is also not harsh. The records reveal that Cruz has a long list of infractions of company rules over his long years of employment with Coke. His long line of dishonest actions here further derogates his claim of good faith. And in view of the nature of his job, where Cruz is entrusted with the property and funds which belong to Coke, termination of employment by reason of loss of confidence is definitely in order. Not only are the records abounding of Cruz’s consistent and deliberate defiance of company rules and regulation, but also his duplicity in handling Coke’s properties. Appeal bond – jurisdictional Ramirez v. CA. The right to appeal is not a natural right or a part of due process; it is merely a statutory privilege, and may be exercised only in the manner prescribed by and in accordance with the provisions of law. The party who seeks to avail himself of the same must comply with the requirements of the rules - failing to do so means he loses the right to appeal. In case of a judgment involving a monetary award from the judgment of the LA, an appeal by the employer may be perfected ONLY upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from. || The Labor Code and the implementing Rules both stress the jurisdictional import of posting the appeal bond. This jurisdictional import can be gleaned from how the provisions have been worded. The intention of the lawmakers to make the bond a mandatory requisite for the perfection of an appeal by the employer is clearly expressed in the language of the law (Labor Code, Art 223) that an appeal by the employer may be perfected "only upon the posting of a cash or surety bond." The word "ONLY" makes it unmistakably plain that the lawmakers intended the posting of a cash or surety bond by the employer to be the essential and exclusive means by which an employer's appeal may be perfected. Clearly, the filing of the bond is not only mandatory but also a jurisdictional requirement because it must be complied with in order to confer jurisdiction upon the NLRC. Non-compliance with the requirement renders the decision of the Labor Arbiter final and executory. || This requirement is intended to assure the workers that if they prevail in the case, they will receive the money judgment in their favor upon the dismissal of the employer's appeal. Relatedly, it is intended to discourage employers from using an appeal to delay or evade their obligation to satisfy their employees’ just and lawful claims. || Under the rules, an employer who

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
seeks an appeal to the NLRC may pray that the appeal bond be reduced. HOWEVER, in such prayer, the employer is required two things: (1) state justifiable grounds for reduction; and (2) post the full amount of cash or surety bond according to the money judgment appealed from or in a reasonable amount in relation to the same monetary award. No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award. || Finally, the mere filing of a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal. Mindanao Time v. Confesor. Under the Rules, an appeal of LA’s judgment involving a monetary award is perfected “only” upon the posting of a “cash or surety bond.” The posting of a bond is indispensable to the perfection of an appeal in cases involving monetary awards from the decision of the LA. The intention of the lawmakers to make the bond a mandatory requisite for the perfection of an appeal by the employer is clearly lined in the provision that an appeal by the employer may be perfected "only upon the posting of a cash or surety bond." The word "only" makes it perfectly plain that the lawmakers intended the posting of a cash or surety bond by the employer to be the essential and exclusive means by which an employer's appeal may be perfected. || The filing of the bond is not only mandatory but also a jurisdictional requirement that must be complied with in order to confer jurisdiction upon the NLRC. Non-compliance therewith renders the decision of the LA final and executory. || “Cash,” means a sum of money; cash bail (the sense in which the term “cash bond” is used) is a sum of money posted by a criminal defendant to ensure his presence in court, used in place of a surety bond and real estate; whereas the Deed of Assignment, as well as the passbook, is neither a cash nor a surety bond. Petitioner’s appeal to the NLRC was thus not duly perfected, thereby rendering the Labor Arbiter’s Decision final and executory. Reliefs/Remedies in Illegal Dismissal LC, 279, supra. LC, 223. Appeal. - Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following grounds: (a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter; (b) If the decision, order or award was secured through fraud or coercion, including graft and corruption; (c) If made purely on questions of law; and (d) If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from. In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein. To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable penalty, including fines or censures, upon the erring parties. In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later than ten (10) calendar days from receipt thereof. The Commission shall decide all cases within twenty (20) calendar days from receipt of the answer of the appellee. The decision of the Commission shall be final and executory after ten (10) calendar days from receipt thereof by the parties. Any law enforcement agency may be deputized by the Secretary of Labor and Employment or the Commission in the enforcement of decisions, awards or orders. (As amended by Section 12, Republic Act No. 6715, March 21, 1989). 1. In general Lopez v. NLRC. In general, the remedy for illegal dismissal is the reinstatement of the employee to his former position without loss of seniority rights and the payment of full backwages (Art 279, Labor Code). The phraseology of the law means that both reliefs (reinstatement and backwages) are available to the illegally dismissed employee as a matter of course. However, if reinstatement is not possible, the employees are entitled to the grant of separation pay and full backwages. At this instance, it must be stressed that the reliefs of separation pay and backwages are cumulative, not alternative remedies. Not infrequently had this Court ruled that separation pay shall be granted as an option to reinstatement if reinstatement can no longer be enforced due to the strained relations between the parties brought about by the litigation in this case. Personal animosities have been generated due to the attendant circumstances of the case. Petitioner held much rancor in her heart against private respondents. Since reinstatement would not be to the best interest of the parties, in lieu thereof, the NLRC correctly awarded separation pay equivalent to one (1) month's salary for every year of service, a fraction of at least six (6) months being considered as one (1) whole year. a. Reinstatement 1) Definition Asian Terminal v. Villanueva. Reinstatement means restoration to a state or condition from which one had been removed or separated. The person reinstated assumes the position he had occupied prior to his dismissal. Reinstatement presupposes that the previous position from which one had been removed still exists, or that there is an unfilled position which is substantially equivalent or of similar nature as the one previously occupied by the employee. Reinstatement does not mean promotion. Promotion is based primarily on an employee’s performance during a certain period. Just because their contemporaries are already occupying higher positions does not automatically entitle respondents to similar positions. Composite v. Caparoso. An order of reinstatement by the Labor Arbiter is immediately executory even pending appeal (Art 223 [par.3], Labor Code as amended by RA 6715). In authorizing execution pending appeal of the reinstatement aspect of a decision of the Labor Arbiter reinstating a dismissed or separated employee, the law itself has laid down a compassionate policy which, once more, vivifies and enhances the provisions of the 1987 Constitution on labor and the working man. With respect to decisions reinstating employees, the law itself has determined a sufficiently overwhelming reason for its execution pending appeal. Then, by and pursuant to the police power of the State, it may authorize an immediate implementation, pending appeal, of a decision reinstating a dismissed employee since that saving act is designed to stop, although temporarily since the appeal may be decided in favor of the employer, a continuing threat or danger to the survival or even the life of the dismissed or separated employee and his family. || Reinstatement is the restoration to a state or condition from which one has been removed or separated. The intent of the law in making a reinstatement order immediately executory is much like a return-to-work order, i.e., to restore the status quo in the workplace in the meantime that the issues raised and the proofs presented by the contending parties have not yet been

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
finally resolved. It is a legal provision which is fair to both labor and management because while execution of the order cannot be stayed by the posting of a bond by the employer, the workers also cannot demand their physical reinstatement if the employer opts to reinstate them only in the payroll. || Payment of separation pay as a substitute for reinstatement is allowed only under exceptional circumstances, viz: (1) when reasons exist which are not attributable to the fault or are beyond the control of the employer, such as when the employer -- who is in severe financial strait, has suffered serious business losses, and has ceased operations -- implements retrenchment, or abolishes the position due to the installation of labor-saving devices; (2) when the illegally dismissed employee has contracted a disease and his reinstatement will endanger the safety of his co-employees; or, (3) where a strained relationship exists between the employer and the dismissed employee. Exceptions J&J v. Johnson Office. Well-entrenched is the rule that an illegally dismissed employee is entitled to reinstatement as a matter of right. Over the years, however, case law developed that where reinstatement is not feasible, as where reinstatement would only exacerbate the tension and strained relations between the parties, or where the relationship between the employer and employee has been unduly strained by reason of their irreconcilable differences, particularly where the illegally dismissed employee held a managerial or key position in the company, it would be more prudent to order payment of separation pay instead of reinstatement. In other words, the payment of separation compensation in lieu of the reinstatement of an employee who was illegally dismissed from work shall be allowed if and only if the employer can prove the existence of circumstances showing that reinstatement will no longer be for the mutual benefit of the employer and employee. || J&J is mistaken in holding that they have the prerogative to choose whether to reinstate respondents to their former positions or to just pay their monetary award. Neither party can claim that it has the categorical right to choose between reinstatement and the payment of the monetary award. Ultimately, the NLRC has the authority to execute its judgment and to settle any issue that may arise pertaining to the manner or details of implementing its judgment. || In this case, the NLRC properly exercised its authority to resolve the controversy when it categorically ordered the reinstatement of respondents to their former positions. The NLRC simply upheld the continuing primacy of reinstatement as the available relief. Effectively, the NLRC disregarded J&J’s claim that the relation between the parties was so strained that only the payment of the monetary award was feasible under the circumstances. The Court defers, as it should, to the finding of the NLRC since the issue of the existence of strained relations between the parties is factual in nature. || That the dispositive portion of the disputed NLRC Resolution contained the phrase “or in the alternative, private respondents are entitled to payment of separation pay” does not mean that J&J was granted the option to pay the separation pay in lieu of reinstating respondents. More than anything else, the statement was in the nature of an affirmation of the state of the law rather than an adjudication of a right in favor of petitioners. a) Closure of business Retuya v. Dumarpa. Illegally dismissed employees are entitled to back wages that should not be diminished or reduced by the amount they have earned from another employment during the period of their illegal dismissal. While litigating, employees must still earn a living. Furthermore, as penalty for their illegal dismissal, their employers must pay them full back wages. In accordance with Art 279 of the Labor Code as amended by RA 6715, an illegally dismissed employee is entitled to his full backwages from the time his compensation was withheld from him up to the time of his actual reinstatement. A closer adherence to the legislative policy the above statutory provision points to 'full backwages' as meaning exactly that, i.e., without deducting from backwages the earnings derived elsewhere by the concerned employee during the period of his illegal dismissal. In other words, the provision calling for 'full backwages' to illegally dismissed employees is clear, plain and free from ambiguity and, therefore, must be applied without attempted or strained interpretation. b) Economic business conditions Union of Supervisors v. Sec. of Labor. Luna is entitled to reinstatement in Republic Planters Bank. Reinstatement pre-supposes that the previous position from which one had been removed still exists, or that there is an unfilled position more or less of a similar nature as the one previously occupied by the employee. There was no closure of shop notwithstanding that the Republic Bank was almost at the brink of financial ruin. Despite the widespread restructuring and reorganization following the substantial change in the corporate structure of the former Republic Bank into the present Republic Planters Bank, to offset the impending financial collapse, the position previously held by the Luna was not abolished, but is now held by the incumbent manager who replaced Luna. It must be remembered that the Bank reached the point of almost complete financial ruin were it not for the rehabilitation progress initiated by the government necessitating widespread restructuring and reorganization of the Bank. At that time of economic crisis of the Bank, Luna was the manager of the San Juan Branch. It cannot be said that he did not contribute, directly or indirectly, to the downhill economy of the respondent Bank. Considering these "economicbusiness conditions" together with the economic crisis WE are in now, it is inevitable that these be reflected in the desire for efficient and productive management. This honest intention can only be effectuated if Luna is reinstated to a substantially equivalent position without loss of seniority rights c) Employee’s unsuitability Divine Word High School v. NLRC. It is very apparent that the main reason she was dismissed was because of the alleged immoral conduct of her husband. Granting that allegation is true, there being no clear showing that complainant's husband was ever investigated or convicted of the serious act alluded to him, why should his wife be made to suffer for her husband's indiscretion and infidelity. Nonetheless, we hesitate ordering the reinstatement of private respondent Luz Ballano Catenza as a high school teacher in the petitioner high school, which is a Catholic institution, serving the educational and moral needs of its Catholic studentry. While herself innocent, the continued presense of Mrs. Catenza as a teacher in the school may well be met with antipathy and antagonism by some sectors in the school community. d) Employee’s Retirement/Overage Espejo v. NLRC. Espejo cannot be reinstated. CISP did not have any retirement plan for its employees. In such situation, Sec. 13, Book IV, of the Omnibus Rules Implementing the Labor Code provides that in the absence of a retirement plan, agreement or policy an employee may be retired upon reaching the age of sixty (60) years. Construing this provision, an employee may retire, or may be retired by his employer, upon reaching sixty (60). Thus, an employee held to be illegally dismissed cannot be reinstated if he had already reached the age of sixty (60) years at the time of his complaint. NLRC therefore did not err in denying the reinstatement of petitioner e) Antipathy and Antagonism – strained relations

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
Westmont Pharma v. Samaniego. However, the circumstances obtaining in this case do not warrant the reinstatement of Samaniego. Antagonism caused a severe strain in the relationship between him and his employer. A more equitable disposition would be an award of separation pay equivalent to at least one month pay, or one month pay for every year of service, whichever is higher (with a fraction of at least six [6 months being considered as one [1 whole year), in addition to his full backwages, allowances and other benefits. 3) Offer to reinstate Ranara v. NLRC. The fact that his employer later made an offer to re-employ him did not cure the vice of his earlier arbitrary dismissal. The wrong had been committed and the harm done. Notably, it was only after the complaint had been filed that it occurred to Chang, in belated gesture of good will, to invite Ranara back to work in his store. Chang's sincerity is suspect. We doubt if his offer would have been made if Ranara had not complained against him. At any rate, sincere or not, the offer of reinstatement could not correct the earlier illegal dismissal of the petitioner. 4) Payroll reinstatement Juanito Garcia v. PAL. There are legal effects arising from a judicial order placing a corporation under rehabilitation. Respondent was, during the period material to the case, effectively deprived of the alternative choices under Article 223 of the Labor Code, not only by virtue of the statutory injunction but also in view of the interim relinquishment of management control to give way to the full exercise of the powers of the rehabilitation receiver. Had there been no need to rehabilitate, respondent may have opted for actual physical reinstatement pending appeal to optimize the utilization of resources. Then again, though the management may think this wise, the rehabilitation receiver may decide otherwise, not to mention the subsistence of the injunction on claims. The obligation to pay the employee’s salaries upon the employer’s failure to exercise the alternative options under Article 223 of the Labor Code is not a hard and fast rule, considering the inherent constraints of corporate rehabilitation. 5) No refund doctrine College of Immaculate Concepcion v. NLRC. An employee cannot be compelled to reimburse the salaries and wages he received during the pendency of his appeal, notwithstanding the reversal by the NLRC of the LA's order of reinstatement. In this case, there is even more reason to hold the employee entitled to the salaries he received pending appeal, because the NLRC did not reverse the LA's order of reinstatement, but merely declared the correct position to which respondent is to be reinstated, i.e., that of full-time professor, and not as Dean. 6) Reinstatement as interim relief, when applicable. Lansangan v. Amkor. Roquero, as well as Article 223 of the Labor Code on which the appellate court also relied, finds no application in the present case. Article 223 concerns itself with an interim relief, granted to a dismissed or separated employee while the case for illegal dismissal is pending appeal, as what happened in Roquero. It does not apply where there is no finding of illegal dismissal, as in the present case Backwages 1) Effect of failure to order Aurora Land v. NLRC. It is true that private respondent did not appeal the award of the Labor Arbiter awarding separation pay sans backwages. While as a general rule a party who has not appealed is not entitled to affirmative relief other than the ones granted in the decision of the court below, law and jurisprudence authorize a tribunal to consider errors, although unassigned, if they involve (1) errors affecting the lower court's jurisdiction over the subject matter, (2) plain errors not specified, and (3) clerical errors. In this case, the failure of the Labor Arbiter and the public respondent NLRC to award backwages to the private respondent, who is legally entitled thereto having been illegally dismissed, amounts to a "plain error" which we may rectify in this petition, although private respondent Dagui did not bring any appeal regarding the matter, in the interest of substantial justice. The Supreme Court is clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it finds that their consideration is necessary in arriving at a just decision of the case St. Michael’s v. Santos. The fact that the NLRC did not award backwages to the respondents or that the respondents themselves did not appeal the NLRC decision does not bar the Court of Appeals from awarding backwages. While as a general rule, a party who has not appealed is not entitled to affirmative relief other than the ones granted in the decision of the court below, the Court of Appeals is imbued with sufficient authority and discretion to review matters, not otherwise assigned as errors on appeal, if it finds that their consideration is necessary in arriving at a complete and just resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice. 2) Computation Mercury drug v. CIR. As stated, the shortest prescriptive period for the filing of all other actions for which the statute of limitations does not fix a period, is four years. The period of delay in instituting this ULP charge with claim for reinstatement and back wages, although within the prescriptive period, should be deducted from the liability of MERCURY to DAYAO for backwages. In order that the employee, however, should be relieved from proving his income during the period he was out of the service and the employer from submitting counter-proofs, which may delay the execution of the decision, MERCURY is to pay DAYAO backwages equivalent to 1 year, 11 months, and 15 days without further disqualifications Bustamante v. NLRC. We do not sustain public respondent's theory that private respondent should not be made to compensate petitioners for backwages because its termination of their employment was not made in bad faith. The act of hiring and re-hiring the petitioners (who are laborers, harvesters or sprayers in an agricultural establishment which produces high grade bananas), petitioners' tasks are indispensable to the year-round operations of respondent company over a period of time without considering them as regular employees evidences bad faith on the part of private respondent. The public respondent made a finding to this effect when it stated that the subsequent rehiring of petitioners on a probationary status "clearly appears to be a convenient subterfuge on the part of management to prevent complainants (petitioners) from becoming regular employees." Star Paper Corp. v. Espiritu. As to issue of backwages, the Court has ruled in a long line of cases that where an employee would have been entitled to reinstatement with full backwages, but circumstances, i.e., strained relationships, makes reinstatement impossible, the more equitable disposition would be an award of separation pay equivalent to at least one month pay, or one month pay for every year of service, whichever is higher, in addition to full backwages, inclusive of allowances, and other benefits or their monetary equivalent, computed from the time the employee’s compensation was withheld from him up to the time of his supposed actual reinstatement. In this case, since payment of backwages and separation pay were ordered only upon promulgation of the CA Decision, and the case was further elevated to this Court, then the supposed actual reinstatement, had reinstatement been feasible, would have

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
been upon the finality of this Court’s decision. Thus, the computation of full backwages, inclusive of allowances, and other benefits or their monetary equivalent, should be computed from the time the respondents’ compensation was withheld from them up to the time of the finality of this decision. 3) Fringe benefits Acesite corp v. NLRC. As to the deletion of the "fringe benefits or their monetary equivalent," this Court agrees with Gonzales that it is not in accord with law and jurisprudence. Article 279 of the Labor Code provides:ART. 279 SECURITY OF TENURE. – In cases of regular employment, the employer shall not terminate the services of an employee except for just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Damages and Attorney’s Fees Phil Aeolus v. NLRC. In determining entitlement to moral and exemplary damages, we restate the bases therefor. In moral damages, it suffices to prove that the claimant has suffered anxiety, sleepless nights, besmirched reputation and social humiliation by reason of the act complained of. Exemplary damages, on the other hand, are granted in addition to, inter alia, moral damages "by way of example or correction for the public good" 23 if the employer ''acted in a wanton, fraudulent, reckless, oppressive or malevolent manner." || Anxiety was gradual in private respondent's five (5)-year employment. It began when her plant manager showed an obvious partiality for her which went out of hand when he started to make it clear that he would terminate her services if she would not give in to his sexual advances. Sexual harassment is an imposition of misplaced "superiority" which is enough to dampen an employee's spirit in her capacity for advancement. It affects her sense of judgment; it changes her life. If for this alone private respondent should be adequately compensated. Thus, for the anxiety, the seen and unseen hurt that she suffered, petitioners should also be made to pay her moral damages, plus exemplary damages, for the oppressive manner with which petitioners effected her dismissal from the service, and to serve as a forewarning to lecherous officers and employers who take undue advantage of their ascendancy over their employees. Reyes v. CA. In its ordinary concept, an attorney’s fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis of this compensation is the fact of his employment by and his agreement with the client. In its extraordinary concept, attorney’s fees are deemed indemnity for damages ordered by the court to be paid by the losing party in a litigation. The instances where these may be awarded are those enumerated in Article 2208 of the Civil Code, specifically par. 7 thereof which pertains to actions for recovery of wages, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof. The extraordinary concept of attorney’s fees is the one contemplated in Article 111 of the Labor Code. Article 111 is an exception to the declared policy of strict construction in the awarding of attorney’s fees. Although an express finding of facts and law is still necessary to prove the merit of the award, there need not be any showing that the employer acted maliciously or in bad faith when it withheld the wages. There need only be a showing that the lawful wages were not paid accordingly, as in this case. Separation Pay Eastern Shipping v. Antonio. [petitioner broke his back; petitioner refuses to employ him after he was repatriated; NLRC awarded retirement gratuity-slash-separation pay, even though there “was no contractual obligation on the part of the petitioner to mandatorily reemploy respondent. The reason, as provided in the Millares case, is that their employment is contractually fixed for a certain period of time and automatically ceased upon the expiration of their contract.” Petitioner Corporation now assails the decision, among others. || Nonetheless, although respondent's entitlement to optional retirement pay is wanting and despite petitioner's non-obligation to mandatorily rehire him, the grant of financial assistance is in order as an equitable concession under the circumstances of the case. || Consequently, for having been deprived of continued employment with petitioner's vessel, respondent opted to apply for optional retirement. In addition, records show that respondent's seaman's book, as duly noted and signed by the captain of the vessel was marked “Very Good,” and “recommended for hire.” Moreover, respondent had no derogatory record on file over his long years of service with the petitioner. Considering all of the foregoing and in line with Eastern, the ends of social and compassionate justice would be served best if respondent will be given some equitable relief. Thus, the award of P100,000.00 to respondent as financial assistance is deemed equitable under the circumstances. “J” Marketing v. Taran. It is well to note that there is no provision in the Labor Code that grants separation pay to voluntarily resigning employees. Separation pay may be awarded only in cases when the termination of employment is due to (a) installation of labor-saving devices, (b) redundancy, (c) retrenchment, (d) closing or cessation of business operations, (e) disease of an employee and his continued employment is prejudicial to himself or his co-employees, or (f) when an employee is illegally dismissed but reinstatement is no longer feasible. In fact, the rule is that an employee who voluntarily resigns from employment is not entitled to separation pay, except when it is stipulated in the employment contract or collective bargaining agreement (CBA), or it is sanctioned by established employer practice or policy. || Here, respondent was separated from his employment not on the grounds mentioned above. Neither was there a stipulation in his employment contract or CBA or even a company practice or policy that would grant separation pay to employees who voluntarily resigned. Nevertheless, the labor tribunals as well as the CA resolved to grant respondent his prayer for separation pay, explaining that he deserved to receive the same as a gratuity for his loyalty and long service to the company, not to mention the representation of Caludac that he would be given all the benefits due him. Ha Yuan v. NLRC. Separation pay may be accordingly awarded provided that the dismissal does not fall under either of 2 circumstances: (1) there was serious misconduct, or (2) the dismissal reflected on the employee’s moral character. // Misconduct is improper or wrongful conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error of judgment. a. Backwages and separation pay, distinct reliefs Triad security v. Ortega. As the law now stands, an illegally dismissed employee is entitled to two reliefs, namely: backwages and reinstatement. These are separate and distinct from each other. However, separation pay is granted where reinstatement is no longer feasible because of strained relations between the employee and the employer.38 In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable and backwages. || Backwages and separation pay are, therefore, distinct reliefs granted to one who was illegally dismissed from employment. The award of one does not preclude that of the other as this court had, in proper cases, ordered the payment of both.

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
Palteng v. UCPB. Settled is the rule that an employee who is illegally dismissed from work is entitled to reinstatement without loss of seniority rights, and other privileges as well as to full backwages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.13 However, in the event that reinstatement is no longer possible, the employee may be given separation pay instead. || Notably, reinstatement and payment of backwages are distinct and separate reliefs given to alleviate the economic setback brought about by the employee’s dismissal. The award of one does not bar the other. Backwages may be awarded without reinstatement, and reinstatement may be ordered without awarding backwages. b. Computation/rationale Business Day v. NLRC. Petitioners' right to terminate employees on account of retrenchment to prevent losses or closure of business operations, is recognized by law, but it may not pay separation benefits unequally for such discrimination breeds resentment and ill-will among those who have been treated less generously than others. "Granting that the 16 May 1988 termination was a retrenchment scheme, and the 31 July 1988 and the 28 February 1989 were due to closure, the law requires the granting of the same amount of separation benefits to the affected employees in any of the cases. The respondent argued that the giving of more separation benefit to the second and third batches of employees separated was their expression of gratitude and benevolence to the remaining employees who have tried to save and make the company viable in the remaining days of operations. This justification is not plausible. There are workers in the first batch who have rendered more years of service and could even be said to be more efficient than those separated subsequently, yet, they did not receive the same recognition. Understandably, their being retained longer in their job and be not included in the batch that was first terminated, was a concession enough and may already be considered as favor granted by the respondents to the prejudice of the complainants. As it happened, there are workers in the first batch who have rendered more years in service but received lesser separation pay, because of that arrangement made by the respondents in paying their termination benefits . . ." Clearly, there was impermissible discrimination against the private respondents in the payment of their separation benefits. The law requires an employer to extend equal treatment to its employees. It may not, in the guise of exercising management prerogatives, grant greater benefits to some and less to others. Management prerogatives are not absolute prerogatives but are subject to legal limits, collective bargaining agreements, or general principles of fair play and justice (UST vs. NLRC, 190 SCRA 758). Article 283 of the Labor Code, as amended, protects workers whose employment is terminated because of closure of the establishment or reduction of personnel (Abella vs. NLRC, 152 SCRA 141, 145) Songco v. NLRC. c. Effect of receipt San Miguel v. Javate. Employees who received their separation pay are not barred from contesting the legality of their dismissal. The acceptance of those benefits would not amount to estoppel. Financial Assistance When Allowed/not allowed Reno foods v. NLM-KATIPUNAN. There is no legal or equitable justification for awarding financial assistance to an employee who was dismissed for stealing company property. Social justice and equity are not magical formulas to erase the unjust acts committed by the employee against his employer. While compassion for the poor is desirable, it is not meant to coddle those who are unworthy of such consideration. SolidBank v. NLRC. The Court finds that the award of financial assistance is bereft of legal basis and serves to penalize petitioner who has complied with the requirements of the law. All that the law requires in cases of dismissal due to an authorized cause is that the employer must pay financial assistance or separation pay in an amount equivalent to “one month’s pay or one-half month’s for every year of service, whichever is higher.” Solidbank has complied with the mandate of the law. Hence, it would be unjust and inequitable to allow the employees to receive higher benefits than those prescribed by the Labor Code and jurisprudence PLDT v. NLRC. Separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. A contrary rule would have the effect of rewarding rather than punishing the erring employee. In this case, the grounds for Marilyn’s dismissal is more serious than mere inefficiency: (i.e. not incompetence but clear dishonesty/ immorality) thus, the generosity of the law must be more discerning. Indemnity Serrano v. NLRC. The violation by the employer of the notice requirement in termination for just or authorized causes was not a denial of due process that will nullify the termination. However, the dismissal is ineffectual and the employer must pay full backwages from the time of termination until it is judicially declared that the dismissal was for a just or authorized cause. Agabon v. NLRC. The violation of the petitioners’ right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances. Considering the prevailing circumstances in the case at bar, we deem it proper to fix it at P30,000.00. We believe this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules Liability of Corporate Officers Carag v. NLRC. Section 31 of the Corporation Code (Batas Pambansa Blg. 68) provides: "Section 31. Liability of directors, trustees or officers. - Directors or trustees who willfully and knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of gross negligence or bad faith ... shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders and other persons." || The personal liability of corporate officers validly attaches only when (a) they assent to a patently unlawful act of the corporation; or (b) they are guilty of bad faith or gross negligence in directing its affairs; or (c) they incur conflict of interest, resulting in damages to the corporation, its stockholders or other persons. || Thus, it was error for Arbiter Ortiguerra, the NLRC, and the Court of Appeals to hold Carag personally liable for the separation pay owed by MAC to complainants based alone on Article 212(e) of the Labor Code. Article 212(e) does not state that corporate officers are personally liable for the unpaid salaries or separation pay of employees of the corporation. The liability of corporate officers for corporate debts remains governed by Section 31 of the Corporation Code. AMA Computer College East Rizal vs Ignacio. Unless they have exceeded their authority, corporate officers are, as a general rule, not personally liable for their official acts, because a corporation, by legal fiction, has a personality separate and distinct from its officers, stockholders and members. It is true that as an exception, corporate directors and officers are solidarily held liable with the corporation, where terminations of employment are done with malice or in bad faith; but where there is an absence of evidence

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
that said directors and officers acted with malice or bad faith, as in this case, the Court must exempt them from any personal liability for the employee’s illegal dismissal Retirement LC, 287. Retirement. - Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining agreement and other agreements: Provided, however, That an employee’s retirement benefits under any collective bargaining and other agreements shall not be less than those provided therein. In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Unless the parties provide for broader inclusions, the term ‘one-half (1/2) month salary’ shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves. Retail, service and agricultural establishments or operations employing not more than ten (10) employees or workers are exempted from the coverage of this provision. Violation of this provision is hereby declared unlawful and subject to the penal provisions under Article 288 of this Code. RA 7641, as amended by RA 8558 IBC v. NLRC. for the retirement benefits to be exempt from the withholding tax, the taxpayer is burdened to prove the concurrence of the following elements: (1) a reasonable private benefit plan is maintained by the employer; (2) the retiring official or employee has been in the service of the same employer for at least 10 years; (3) the retiring official or employee is not less than 50 years of age at the time of his retirement; and (4) the benefit had been availed of only once. Jaculbe v. Silliman. In this case, neither the CA nor the respondent cited any agreement, collective or otherwise, to justify the latter’s imposition of the early retirement age in its retirement plan, opting instead to harp on petitioner’s alleged "voluntary" contributions to the plan, which was simply untrue. The truth was that petitioner had no choice but to participate in the plan, given that the only way she could refrain from doing so was to resign or lose her job. It is axiomatic that employer and employee do not stand on equal footing, a situation which often causes an employee to act out of need instead of any genuine acquiescence to the employer. This was clearly just such an instance. An employer is free to impose a retirement age less than 65 for as long as it has the employees’ consent. Stated conversely, employees are free to accept the employer’s offer to lower the retirement age if they feel they can get a better deal with the retirement plan presented by the employer. Thus, having terminated petitioner solely on the basis of a provision of a retirement plan which was not freely assented to by her, respondent was guilty of illegal dismissal. Reyes v. NLRC. The “overriding commissions” paid to him by Universal Robina Corp. could not have been ‘sales commissions’ in the same sense that Philippine Duplicators paid its salesmen sales commissions. Unit Managers are not salesmen; they do not effect any sale of article at all. Therefore, any commission which they receive is certainly not the basic salary which measures the standard or amount of work of complainant as Unit Manager. In fine, the commissions which petitioner received were not part of his salary structure but were profitsharing payments and had no clear, direct or necessary relation to the amount of work he actually performed. The collection made by the salesmen from the sale transactions was the profit of private respondent from which petitioner had a share in the form of a commission 1. Retroactive Application of RA 7641 U.Robina v. Caballeda. Pursuant thereto, this Court imposed two (2) essential requisites in order that R.A. 7641 may be given retroactive effect: (1) the claimant for retirement benefits was still in the employ of the employer at the time the statute took effect; and (2) the claimant had complied with the requirements for eligibility for such retirement benefits under the statute. It is evident from the records that when respondents were compulsorily retired from the service, R.A. 7641 was already in full force and effect. The petitioners failed to prove that the respondents did not comply with the requirements for eligibility under the law for such retirement benefits. In sum, the aforementioned requisites were adequately satisfied, thus, warranting the retroactive application of R.A. 7641 in this case. 2. Components of on-half month pay/salary Guidelines 5.2. Enriquez v. Cabotaje. Section 5.2, Rule II of the Implementing Rules of Book VI of the Labor Code further clarifies what comprises the "1/2 month salary" due a retiring employee: 5.2 Components of One-half (1/2) Month Salary. – For the purpose of determining the minimum retirement pay due an employee under this Rule, the term "one-half month salary" shall include all the following: (a) Fifteen (15) days salary of the employee based on his latest salary rate. x x x; (b) The cash equivalent of not more than five (5) days of service incentive leave; (c) One-twelfth of the 13th month pay due an employee; (d) All other benefits that the employer and employee may agree upon that should be included in the computation of the employee’s retirement pay. The foregoing rules are clear that the whole 5 days of SIL are included in the computation of a retiring employees’ pay. 3. When RA 7641 is applicable Oxales v. Unilab. R.A. No. 7641, otherwise known as "The Retirement Pay Law," only applies in a situation where (1) there is no collective bargaining agreement or other applicable employment contract providing for retirement benefits for an employee; or (2) there is a collective bargaining agreement or other applicable employment contract providing for retirement benefits for an employee, but it is below the requirements set for by law Three kinds of retirement plans Gerlach v. Reuters. There are three kinds of retirement schemes. The first type is compulsory and contributory in character. The second type is one set up by agreement between the employer and the employees in collective bargaining agreements or other agreements

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Labor I Finals Reviewer Prof. P. Daway 1 semester, AY ’10-‘11
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Janz Hanna Ria N. Serrano Special thanks to AJ, Amin, Cha, Krizel and Vien
between them.27 The third type is one that is voluntarily given by the employer, expressly as in an announced company policy or impliedly as in a failure to contest the employee's claim for retirement benefits.28 It is this third type of retirement scheme which covers respondent’s Plan. Sta. Catalina v. NLRC. Since the computed amount of her retirement pay is much lower than that provided under the law, she is entitled to receive the difference between the actual amount of her retirement benefits as required by law and that provided for under the PERAA PAL v. APA. the retirement benefits that a pilot would get under the provisions of Article 287 of the Labor Code are less than those that he would get under the applicable retirement plans of petitioner, hence, apply PAL’s special retirement plan. Voluntary Retirement Ariola v. Philex. Retirement results from a voluntary agreement between the employer and the employee where the latter, after reaching a certain age, agrees to sever his employment with the former. Thus if, as in the present case, the intent to retire is not clearly established or if the retirement is involuntary, it is to be treated as a discharge. Forfeiture of benefits Equitable PCI v. Caguia. Petitioner bank found that Caguioa was guilty of violations of its Code of Conduct, and that such violations warranted her dismissal from the service and constituted a just cause for terminating her employment under Article 282(c) of the Labor Code. Consequently, the Bankwide Evaluation Committee (BEC) decided to impose on her “the principal penalty of DISMISSAL FROM EMPLOYMENT with automatic forfeiture of benefits . Sy v. Metrobank. While the Court commiserates with petitioner who has spent with the bank the best three decades of his employable life, we find no room to accord him compassionate justice. Records showed that he violated the bank policies prior to his compulsory retirement. Thus, there can be no earned retirement benefits to speak of. No such provision is provided for by the Labor Code. In fact, even the Civil Service Law imposes forfeiture of retirement benefits in valid dismissal cases. Equitable solution PLDT v. Reus. The NLRC apparently had other thoughts in mind; it wanted to order payment - not strictly based on the law for there was a cited cause for dismissal, nor on the eligibility terms of the company's retirement plan for he was not being retired - but on the basis of equity; it was simply applying the benefits of the plan as a measure of what should be paid as "equitable solution," to quote directly from the words of the 1993 NLRC decision. Thus, its order for payment was clear, direct, and unfettered by any condition of entitlement or eligibility. Retirement pay differential Rivera v. Unilab. SC denied old woman’s claim for retirement pay differential ( worked even after retirement age) no doctrine on retirement pay differential, only on the merits of why she’s not covered by RA 7641 Management prerogative Magdadaro v. PNB. Whether petitioner’s early retirement within the SSIP period will improve or impair the delivery of bank services is a business decision properly within the exercise of management prerogative.

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