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certiorari to the Supreme Court are allowed would not subserve, but
would subvert, the intention of Congress.
General Milling Corp. v. CA
The relation between labor and management should be undisturbed
until the last 60 days of the fifth year.
For refusing to send a counter-proposal to the union and to bargain
anew on the economic terms of the CBA, the company committed an
unfair labor practice under Article 248 of the Labor Code
Under Article 252, both parties are required to perform their mutual
obligation to meet and convene promptly and expeditiously in good
faith for the purpose of negotiating an agreement.
The procedure in collective bargaining prescribed by the Code is
mandatory because of the basic interest of the state in ensuring
lasting industrial peace.
Failure by the employer to make a timely reply to the proposals
presented by the union is indicative of its utter lack of interest in
bargaining with the union.
An employers refusal to make a counter-proposal to the unions
proposal for CBA negotiation is an indication of its bad faith. Where
the employer did not even bother to submit an answer to the
bargaining proposals of the union, there is a clear evasion of the duty
to bargain collectively.
Art. 253 mandates the parties to keep the status quo while they are
still in the process of working out their respective proposal and
counter proposal. The general rule is that when a CBA already exists,
its provision shall continue to govern the relationship between the
parties, until a new one is agreed upon.
Rule VII
Proceeding Before the Commission
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Section 14. Finality of Decision of the Commission and Entry of
Judgment.
a) Finality of the Decisions, Resolutions or Orders of the Commission.
Except as provided in Section 9 of Rule X, the decisions, resolutions or
orders of the Commission shall become final and executory after ten
(10) calendar days from receipt thereof by the parties.
b) Entry of Judgment. Upon the expiration of the ten (10) calendar
day period provided in paragraph (a) of this Section, the decision,
resolution, or order shall be entered in a book of entries of judgment.
The Executive Clerk or Deputy Executive Clerk shall consider the
decision, resolution or order as final and executory after sixty (60)
calendar days from the date of mailing in the absence of return cards,
certifications from the post office, or other proof of service to parties.
SECTION 15. MOTIONS FOR RECONSIDERATION. Motion for
reconsideration of any decision, resolution or order of the Commission
shall not be entertained except when based on palpable or patent
errors; provided that the motion is under oath and filed within ten (10)
calendar days from receipt of decision, resolution or order, with proof
of service that a copy of the same has been furnished, within the
reglementary period, the adverse party; and provided further, that
only such motion from the same party shall be entertained.
Should a motion for reconsideration be entertained pursuant to this
section, the resolution shall be executory after ten (10) calendar days
from receipt thereof.
RULE XI
Execution Proceedings
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SECTION 10. Effect of Petition for Certiorari on Execution. A petition
for certiorari with the Court of Appeals or the Supreme Court shall not
stay the execution of the assailed decision unless a restraining order is
issued by said courts.
A prevailing party has a right to move for the execution of the
monetary award of the NLRC pending appeal.
trade in its entirety. Also if the employee has been performing the job
for at least a year, even if the performance is not continuous and
merely intermittent, the law deems repeated and continuing need for
its performance as sufficient evidence of the necessity if not
indispensability of that activity to the business. Hence, the
employment is considered regular, but only with respect to such
activity and while such activity exists.
The fact that workers do not work continuously for one whole year
but only for the duration of the season does not detract from
considering them in regular employment since 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 merely
considered on leave until re-employed.
Where there is no showing of clear, valid and legal cause for the
termination of employment, the law considers the matter a case of
illegal dismissal and the burden is on the employer to prove that the
termination was for a valid and authorized cause.
Millares v. NLRC
Article 280 of the Labor Code does not apply to overseas
employment.
C-E Construction Corp. v. NLRC
Even after a judgment has become final and executory, an appellate
court may still modify or alter it when intervening circumstances
render execution of that decision unjust and inequitable. This principle
does not apply, however, when the basis for modification is previously
existing evidence that a party fails to adduce during the hearing on
the merits, despite ample opportunity to do so.
Except for correction of clerical errors, final and executory
judgments can neither be amended nor altered, even if the purpose is
to correct erroneous conclusions of fact or of law.
The payment of full back wages must be given without diminution
of income earned during the no-work status of an illegally dismissed
employee.
Sonza v. ABS-CBN Broadcasting Corp.
The control test is the most important test our courts apply in
distinguishing an employee from an independent contractor. This test
is based on the extent of control the hirer exercises over a worker. The
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Art. 281
ICMC v. NLRC
Failure to qualify as a regular employee in accordance with the
reasonable standards of the employer is a just cause for terminating a
probationary employee specifically recognized under Article 281.
The employer is the one who is to set the standards and determine
whether or not the services of an employee are satisfactory. It is the
prerogative of an employer to determine whether or not the said
standards have been complied with. In fact, it is the right of the
employer to shorten the probationary period if he is impressed with
the services of the employees.
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Art. 282
Serrano v. NLRC
The requirement to give a written notice of termination at least 30
days in advance is a requirement of Art. 283 of the Labor Code.
What the law requires is a written notice to the employees
concerned and that requirement is mandatory. The notice must also
be given at least one month in advance of the intended date of
retrenchment to enable the employees to look for other means of
employment and therefore to ease the impact of the loss of their jobs
and the corresponding income.
The purpose of such previous notice is to give the employee some
time to prepare for the eventual loss of his job as well as the DOLE the
opportunity to ascertain the verity of the alleged authorized cause of
termination. Such purpose would not be served by the simple
expedient of paying 30 days salary in lieu of notice of an employees
impending dismissal, as by then the loss of employment would have
been a fait accompli.
The order to pay full backwages is a consequence of the employers
action in dismissing an employee without notice which makes said
dismissal ineffectual. The employee is considered not to have been
terminated from his employment until it is finally determined that his
dismissal/termination of employment was for cause and, therefore, he
should be paid his salaries in the interim.
Agabon v. NLRC
To dismiss an employee, the law requires not only the existence of a
just and valid cause but also enjoins the employer to give the
employee the opportunity to be heard and to defend himself. Article
282 of the Labor Code enumerates the just causes for termination by
the employer: (a) serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or the latters
representative in connection with the employees work; (b) gross and
habitual neglect by the employee of his duties; (c) fraud or willful
breach by the employee of the trust reposed in him by his employer or
his duly authorized representative; (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 representative;
and (e) other causes analogous to the foregoing.
Abandonment is the deliberate and unjustified refusal of an
employee to resume his employment. It is a form of neglect of duty,
hence, a just cause for termination of employment by the employer.
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Garcia v. NLRC
Mere absence or failure to report for work, after notice to return, is
not enough to amount to such abandonment. For a valid finding of
abandonment, two factors must be present, viz; (1) the failure to
report for work or absence without valid or justifiable reason; and (2) a
clear intention to sever the employer-employee relationship, with the
second element as the more determinative factor being manifested by
some overt acts. There must be a concurrence of the intention to
abandon and some overt acts from which an employee may be
deduced as having no more intention to work. Such intent to
discontinue the employment must be shown by clear proof that it was
deliberate and unjustified.
prior clearance rule: Art. 278 (b): (b) With or without a collective
agreement, no employer may shut down his established or dismiss or
terminate the employment of employees with at least one year of
service during the last two years, whether such service is continuous
or broken, without prior written authority issued in accordance with
such rules and regulations as the Secretary may promulgate. Rule
XIV Section 2 of the Rules Implementing the Labor Code which was
still in force at that time, likewise provides: Sec. 2 Shutdown or
dismissal without clearance. Any shutdown or dismissal without
prior clearance shall be conclusively presumed to be termination of
employment without a just cause. The Regional Director shall, in such
case, order the immediate reinstatement of the employee and the
payment of his wages from the time of the shutdown or dismissal until
the time of reinstatement.
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(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.
Art. 283
Wiltshire File Co., Inc. v. NLRC
Redundancy exists where the services of an employee are in
excess of what is reasonably demanded by the actual requirements of
the enterprise. Succinctly put, a position is redundant where it is
superfluous, and superfluity of a position or positions may be the
outcome of a number of factors, such as overhiring of workers,
decreased volume of business, or dropping of a particular product line
or service activity previously manufactured or undertaken by the
enterprise. The employer has no legal obligation to keep in its payroll
more employees than are necessarily for the operation of its business.
It is of no legal moment that the financial troubles of the company
were not of an employees making. An employee cannot insist on the
retention of his position upon the ground that he had not contributed
to the financial problems of the company where he works. The
characterization of an employees services as no longer necessary or
sustainable, and therefore properly terminable, is an exercise of
business judgment on the part of a company. The wisdom or
soundness of such characterization or decision was not subject to
discretionary review on the part of the Labor Arbiter nor of the NLRC
so long, of course, as violation of law or merely arbitrary and malicious
action is not shown.
The determination of the continuing necessity of a particular officer
or position in a business corporation is managements prerogative,
and the courts will not interfere with the exercise of such so long as no
abuse of discretion or merely arbitrary or malicious action on the part
of management is shown.
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dismissal to be valid, (a) the dismissal must be for a valid cause and
(b) the employee must be afforded due process.
Article 284 of the Labor Code authorizes an employer to terminate
an employee on the ground of disease. 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.
The requirement for a medical certificate under Article 284 of the
Labor Code cannot be dispensed with.
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or penal in nature shall be punished with a fine of not less than One
Thousand Pesos [P1,000.00] nor more than Ten Thousand Pesos
[10,000.00], or imprisonment of not less than three [3] months nor
more than three [3] years, or both such fine and imprisonment at the
discretion of the court.
Unlike in cases of commission of any of the prohibited activities
during strikes or lockouts under Article 265, unfair labor practices
under Article 248, 249 and 250 and illegal recruitment activities under
Article 38, among others, which the Code itself declares to be
unlawful, termination of an employment without just or valid cause is
not categorized as an unlawful practice.
The reliefs principally sought by an employee who was illegally
dismissed from his employment are reinstatement to his former
position without loss of seniority rights and privileges, if any,
backwages and damages, in case there is bad faith in his dismissal. As
an affirmative relief, reinstatement may be ordered, with or without
backwages. While ordinarily, reinstatement is a concomitant of
backwages, the two are not necessarily complements, nor is the
award of one a condition precedent to an award of the other. And, in
proper cases, backwages may be awarded without ordering
reinstatement . In either case, no penalty of fine nor imprisonment is
imposed on the employer upon a finding of illegality in the dismissal.
By the very nature of the reliefs sought, therefore, an action for illegal
dismissal cannot be generally categorized as an offense as used
under Article 291 of the Labor Code.
Backwwages sought by an illegally dismissed employee may be
considered, by reason of its practical effect, as a money claim.
However, it is not the principal cause of action in an illegal dismissal
case but the unlawful deprivation of the ones employment committed
by the employer in violation of the right of an employee. Backwages is
merely one of the reliefs which an illegally dismissed employee prays
the labor arbiter and the NLRC to render in his favor as a consequence
of the unlawful act committed by the employer. The award thereof is
not private compensation or damages but is in furtherance and
effectuation of the public objectives of the Labor Code.
prescriptive period for illegal dismissal cases: When one is
arbitrarily and unjustly deprived of his job or means of livelihood, the
action instituted to contest the legality of ones dismissal from
employment constitutes, in essence, an action predicated upon an
injury to the rights of the plaintiff, as contemplated under Art. 1146
of the New Civil Code, which must be brought within four [4] years.
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