Académique Documents
Professionnel Documents
Culture Documents
EXAMINATION
QUESTIONS
IN
LABOR LAW
&
FORWARD
This work is not intended for sale or commerce. This work is freeware. It may be
freely copied and distributed. It is primarily intended for all those who desire to have
a deeper understanding of the issues touched by the Philippine Bar Examinations and
its trend. It is specially intended for law students from the provinces who, very often,
are recipients of deliberately distorted notes from other unscrupulous law schools and
students. Share to others this work and you will be richly rewarded by God in heaven.
SOCIAL LEGISLATION
It is also very good karma.
ARRANGED BY TOPIC
We would like to seek the indulgence of the reader for some Bar Questions which
(1994 2006)
are improperly classified under a topic and for some topics which are improperly or
ignorantly phrased, for the authors are just Bar Reviewees who have prepared this
Edited and Arranged by:
work while reviewing forAtty.
the Bar Exams under timeandconstraints and within their
Janette Laggui-Icao
Atty. Alex Andrew P. Icao
limited knowledge of the (Silliman
law. WeUniversity
would like to seek
College the readers indulgence for a
of Law)
July 26, 2005
lot of typographical errors in this work.
Updated by:
Romualdo L. Seeris II, LLB.
(Silliman University College of Law)
The Authors
April 27, 2007
ALTERNATIVE ANSWER:
Yes. Labor Legislation is limited in scope, and deals
basically with the rights and duties of employees and
employers. Social Legislation is more encompassing
and includes such subjects as agrarian relations,
housing and human settlement, protection of women
and children, etc. All labor
a) No, the policy does not violate the Labor Code.
The practice is a valid exercise of management (d) No, because this amounts to a diminution of
function. Considering the nature and reason for benefits which is prohibited by the Labor Code;
existence of the school, it may adopt such policy as (e) No, because it is a fringe benefit that has
will advance its laudable objectives. In fact, the policy already ripened into a demandable right or
accords with the constitutional precept of inculcating entitlement. (10%)
ethical and moral values in schools. The school ALTERNATIVE ANSWER:
policy does not discriminate against women solely on (b) Yes, because it is suffering losses for the first
account of sex (Art. 135, Labor Code) nor are the time;
acts prohibited under Art. 137 of the Labor Code. (c) Yes, because this is a management prerogative
which is not due any legal or contractual obligation;
ALTERNATIVE ANSWER:
The school violated Art. 137 (2) of the Labor Code
which states that: "It shall be unlawful for any An employer cannot be forced to continue giving a
employer to discharge such woman on account of benefit, being given as a management prerogative,
pregnancy". The pregnancy here could obviously when it can no longer afford to pay for it. To hold
have resulted from love and such only lends otherwise, would be to penalize the employer for his
substance to the saying that "the heart has reasons past generosity. (Producer's Bank of the Philippines
of its own which reason does not know", a matter v. NLRC, G.R. No. 100701, March 28, 2001)
that cannot "be so casually equated with immorality".
[Chua-Qua v. Clave, 189 SCRA 117 (1990)]. ALTERNATIVE ANSWER:
(d) No, because this amounts to a diminution of
SUGGESTED ANSWER: benefits which is prohibited by the Labor Code;
b) No, because to tolerate pregnancy out of wedlock (e) No, because it is a fringe benefit that has already
will be a blatant contradiction of the school's ripened into a demandable right or entitlement.
laudable mission which, as already stated, accords
with high constitutional precepts.
A company practice favorable to employees had
This answer does not contradict the ruling in Chua- indeed been established and the payments made
Qua where the teacher merely fell in love with a pursuant thereto, ripened into benefits enjoyed by
bachelor student and the teacher, also single, did them. And any benefit and supplement being
not get pregnant out of wedlock. enjoyed by the employees cannot be reduced,
diminished, discontinued or eliminated by the
Rights of the Employer; Management employer by virtue of Article 100 of the Labor Code
Prerogative; Benefits; Unilaterally Given of the Philippines which prohibits the diminution or
(2005) elimination of the employer of the employees'
Little Hands Garment Company, an unorganized existing benefits. (Sevilla Trading Co. v. Semana,
manufacturer of children's apparel with around 1,000 G.R. No. 152456, April 28, 2004)
workers, suffered losses for the first time in history ALTERNATIVE
ALTERNATIVE ANSWER: ANSWER:
when its US and European customers shifted their (b) Yes,
In an because it is suffering
employer-employee losses forit the
relationship, firstright
is the
huge orders to China and Bangladesh. The time;
of the employer to use the services of an employee
management informed its employees that it could no (d)
whoNo, because
is under histhis amounts to
(employer's) a diminution
orders as regards of the
longer afford to provide transportation shuttle benefits
employment. On the other hand, it is the right ofYou
which is prohibited by the Labor Code. the
services. Consequently, it announced that a normal cannot
employee compel an employer
to receive to continue
compensation for paying the
the services
fare would be charged depending on the distance benefits
he rendersif itfor
is suffering from serious business
the employer.
traveled by the workers availing of the service. losses. However, the benefit has already ripened
into an employer
Rights practice or Management
of the Employer; policy, and therefore it
cannot be withdrawn
Prerogative (2000) without violating Article 100 of
Was the Little Hands Garments Company within its the
a) AnLabor Code on
exclusive non-diminution
school for girls, of
runbenefits.
by a religious
rights to withdraw this benefit which it had unilaterally order, has a policy of not employing unwed mothers,
been providing to its employees? Select the best women with live-in partners, and lesbians. Is the
answer(s) and briefly explain your reason(s) therefor. policy violative of any provision of the Labor Code on
employment of women? (3%)
(a) Yes, because it can withdraw a benefit that
is unilaterally given; b) The same school dismissed two female faculty
(b) Yes, because it is suffering losses for the members on account of pregnancy out of wedlock.
first time; Did the school violate any provision of the Labor
(c) Yes, because this is a management Code on employment of women? (3%)
prerogative which is not due any legal or contractual SUGGESTED ANSWER:
obligation;
stewards who do the cleaning of the hotel's public Rights of the Employer; Management
areas. Over the protest of the Union, the Hotel prerogatives (1994)
contracted out the aforementioned job to the City Bulacan Medical Hospital (BMH) entered into a
Service Janitorial Company, a bonafide Collective Bargaining Agreement (CBA) with its
independent contractor which has a substantial Union, wherein it is expressly stipulated in the
capital in the form of Janitorial tools, equipment, Management Prerogative Clause that BMH shall, in
machineries and competent manpower. Is the the exercise of its management prerogatives, have
action of the Harbor View Hotel legal and valid? the sole and exclusive right to promulgate, amend
and modify rules and regulations for the employees
SUGGESTED ANSWER: within the bargaining unit. A year after the contract
The action of Harbor View Hotel is legal and valid. The was signed, BMH issued its Revised Rules and
valid exercise of management prerogative, discretion Regulations and furnished a copy thereof to the
and judgment encompasses all aspects of Union for dissemination to all employees covered by
employment, including the hiring, work assignments, the CBA. The Union wrote BMH demanding that the
working methods, time, place and manner of work, Revised Rules and Regulations be first discussed
tools to be used, processes to be followed, with them before its implementation. BMH refused.
supervision of workers, working regulations, transfer of So, the Union filed an action for unfair labor practice
employees, work supervision, lay-off of workers, and (ULP) against BMH.
the discipline, dismissal and recall of workers, except
as provided for, or limited by special laws. 1Is the Union correct?
2Assuming that the CBA was signed "or executed
before the 1987 Constitution was ratified, would your
Company policies and regulations are, unless shown answer to the preceding question be different?
to be gross oppressive or contrary to law, generally
binding and valid on the parties and must be
complied with until finally revised or amended
unilaterally or preferably through negotiation or by
competent authority. (San Miguel Corporation vs.
Reynaldo R. Ubaldo and Emmanuel Noel A. Cruz,
Chairman and Member respectively of the Voluntary
Arbitration Panel, et al G.R No. 92859, 1 February
1993. J. Campos, Jr., 218 SCRA 293)
ALTERNATIVE ANSWER:
a) The action of the Harbor View Hotel is legal and
valid. CONTRACTING OUT SERVICES or functions
being performed by union members is not illegal per
se. In fact, it is the prerogative of management to
adopt cost-saving measures to ensure economy and
efficiency. Contracting out services or functions being
performed by Union members becomes illegal only
when it interferes with, restrains or coerces
employees in the exercise of their right to self-
organization.
With respect to the civil suit for damages, the SUGGESTED ANSWER:
company lawyer filed a Motion to Dismiss for lack of 1) The defense that I will put up will be to claim that
jurisdiction considering the existence of an being an international agency, the ILO enjoys
employer-employee relationship and therefore, it is immunity, namely functional independence and
claimed that the case should have been filed before freedom from control of the state in whose territory
the Labor Arbiter. its office is located and is thus beyond the
2. Rule on the Motion to Dismiss. Should it be jurisdiction of the Labor Arbiter. (Southeast Asian
granted or denied? Explain briefly (3%). Fisheries Development Center - Aqua Culture
SUGGESTED ANSWER: Department, et al vs. National Labor Relations
The Motion to Dismiss should be denied. It is a Commission, et al G.R No, 86773, 14 February
regular court and not a Labor Arbiter that has 1992)
jurisdiction on the suit for damages.
2) If I were the Labor Arbiter. I will grant the motion
The damages are not arising from the employer- to dismiss. The ILO being an International agency,
employee relations which would have placed the suit the same is beyond the jurisdiction of the Labor
under the jurisdiction of a Labor Arbiter. The suit Arbiter and immune from the legal writs and
arises from the fact that the President of the processes of the administrative agencies of the
company shouted invectives at Marlet Demetrio in country, where it is found, for the reason that the
the presence of employees and visitors. Her subjection of such an organization to the authority of
complaint for damages is against an officer of the the local agencies would afford a convenient
Company based on slanderous language allegedly medium through which the host government may
made by the latter. This falls under the Jurisdiction of interfere in its operations or even influence or control
the ordinary courts. There is here a simple action for its policies and decisions, and besides, such
damages for tortious acts allegedly committed by the subjection to local jurisdiction would Impair the
defendant. Such being the case, the governing capacity of such body to impartially discharge its
statute is the Civil Code and not the responsibilities.
Intra-corporate Matters/Officers (1996) 1cases accompanied with a claim for reinstatement,
Diego, Executive Vice-President of Evergreen and involving wages, rates of pay, hours of work, and
Development Corporation (EDC) was dismissed by other terms and conditions of employment;
the Board of Directors for his involvement in 2claims for actual, moral, exemplary and other forms
irregularities prejudicial to EDC's interests. He filed a of damages arising from employer-employee
complaint for illegal dismissal with the Labor Arbiter, relations:
praying for reinstatement with back-wages, P5 3cases arising from any violation of Article 264 of the
million pesos as moral damages, P1 million pesos as Labor Code, including questions involving the legality
exemplary damages and attorney's fees. EDC of strikes and lockout; and
questioned the Jurisdiction of the Labor Arbiter. 4except claims of Employees Compensation, Social
Diego, in turn contended that the Labor Arbiter has Security. Medicare and maternity benefits, all other
jurisdiction over the case as it involves the claims arising from employer-employee relations
termination of an employee and claims for including those persons in domestic or household
backwages, benefits and damages. Decide. service, Involving an amount exceeding five thousand
SUGGESTED ANSWER: pesos (P5,000 00) regardless of whether
The dismissal of an Executive Vice-president of a accompanied with a claim for reinstatement.
Corporation, who is a corporate officer, by the Board
of Directors of the corporation is not a termination
dispute under the Jurisdiction of a Labor Arbiter. It is
an intra-corporate dispute that is under the
jurisdiction of the Securities and Exchange
Commission.
SUGGESTED ANSWER:
The Motion to Dismiss should be granted. The
election of Jonathan Pe as Vice President of New
Wave Beauty Shop, Inc, made him a corporate
officer.
CBA; Closed Shop Provision; When not (a) Describe a "closed shop agreement, does it
applicable (1999) (b) Areanthe
differ from above shop
"agency agreements
agreement."
FACTS: In a certification election conducted by the legal?
SUGGESTED ANSWER:
Department of Labor, Associated Workers
Organization in Laguna (AWOL) headed by Cesar (a) A "CLOSED SHOP AGREEMENT" is that
Montanyo, won over Pangkat ng mga Manggagawa sa agreement embodied in a collective bargaining
Laguna (PML), headed by Eddie Graciaa. Hence, agreement (CBA) whereby the employer binds itself
AWOL was certified as the exclusive bargaining agent not to hire any person unless he is first a union
of the rank-and-file employees of the Laguna member of the collective bargaining representative.
Transportation Company (LTC).
An "AGENCY SHOP AGREEMENT" is different from
a closed shop agreement in that under the former,
Shortly, thereafter, a Collective Bargaining Agreement the employer does not bind itself not to hire a person
was concluded by LTC and AWOL which provided for unless he is first a union member of the collective
a closed shop. Consequently, AWOL, demanded that bargaining representative. Instead, the employer
Eddie Graciaa and all the PML members be required binds itself to check off from those who are not union
to become members of AWOL as a condition for their members of the collective bargaining representative
continued employment: otherwise, they shall be a reasonable fee equivalent to the dues and other
dismissed pursuant to the closed shop provision of fees paid by union members if the non-union
the CBA. members accept the benefits of the CBA.
SUGGESTED ANSWER:
So that the contract-bar rule may apply the CBA
should be registered, assuming it has been validly
ratified and contains the mandatory provisions. (Art.
232, Labor Code).
ALTERNATIVE ANSWER:
The Motion to Dismiss should be denied. In the first
place, the general rule is that in a certification
election the employer is a mere bystander. An
employer has no legal standing to question a
certification election as it is the sole concern of the
workers. The exceptions to the general rule of which
are 1) when the existence of an employer-employee
relationship is denied; and 2) when the employer
questions the legal personality of the union because
of irregularities in its registration are not present in
this case.
officers or members of the managerial staff. A strike to publicly protest a certain policy or action
supervisor and a rank and file employee can be taken by the government. Thus, for instance, a
considered as members of the managerial staff, and general strike may be declared by workers to
therefore, a managerial employee if their primary duty publicly protest the stand of President Arroyo that
consists of work directly related to management she is against an increase of the minimum wage at
policies; if they customarily and regularly exercise this time.
discretion and independent judgment; regularly and
directly assist a proprietor or a managerial employee Right to Strike; Assumption Power
whose primary duty consists of the management of FACTS: Jenson & Jenson (J & J) is a domestic
the establishment in which they are employed or a corporation engaged in the manufacturing of
subdivision thereof; or execute under general consumer products. Its rank-and-flle workers
supervision work along specialized or technical lines organized the Jenson Employees Union (JEU), a duty
requiring special training, experience, or knowledge; registered local union affiliated with PAFLU, a national
or execute under general supervision special union. After having been certified as the exclusive
assignments and tasks; and who do not devote more bargaining agent of the appropriate bargaining unit,
than 20 percent of their hours worked in a work-week JEU-PAFLU submitted its proposals for a Collective
to activities which are not directly and closely related Bargaining Agreement with the company.
to the performance of the work described above. All
others are rank and file employees under said Book
(Art. 82, Labor Code, Sec. 2 (c), Rule I, Bk. III, In the meantime, a power struggle occurred within the
Omnibus Rules Implementing the Labor Code). national union PAFLU between its National President,
Manny Pakyao, and its National Secretary General,
Gabriel Miro. The representation issue within PAFLU is
pending resolution before the Office of the Secretary of
Under Book Five of the Labor Code, "MANAGERIAL Labor.
EMPLOYEE" is one who is vested with powers or
prerogatives to lay down, and execute management
policies and/or to hire, transfer, suspend, lay-off, recall, By reason of this intra-union dispute within PAFLU, J
discharge, assign or discipline employees. A & J obstinately and consistently refused to offer any
SUPERVISORY EMPLOYEE is one who, in the interest counterproposal and to bargain collectively with JEU-
of the employer, effectively recommends such PAFLU until the representation issue within PAFLU
managerial actions if the exercise of such authority is shall have been resolved with finality. JEU-PAFLU
not merely routinary or clerical in nature but requires filed a Notice of Strike. The Secretary of Labor
the use of independent judgment. All employees not subsequently assumed jurisdiction over the labor
falling within any of the above definitions are dispute. 1) Will the representation issue that has
considered rank-and-file employees for purposes of this arisen
Book (Art. 212 (M), Labor Code). involving the national union PAFLU, to which
the duty registered local union JEU is affiliated,
bar collective bargaining negotiation with J &
J? Explain briefly. (3%) 2) Can the Secretary of
On the matter of right to self-organization, a Labor decide the labor
managerial employee cannot exercise such right; dispute by awarding the JEU CBA Proposals
while a supervisor and a rank and file employee can as the Collective Bargaining Agreement of the
(Arts. 245, 243, Labor Code). parties? Explain briefly. (2%)
SUGGESTED ANSWER:
Right to Strike: Sympathy vs. General Strike 1. Representation issue in this case is not a bar...
(2004) 2. Yes. The Secretary of Labor can decide the labor
Distinguish clearly but briefly between: Sympathy dispute by awarding the JEU CBA proposals as
strike and general strike. the Collective Bargaining Agreement of the
SUGGESTED ANSWERS: parties because when the Secretary of Labor
In both a sympathy strike and in a general strike, (under Article 263[g]) assumes jurisdiction over
there is a stoppage of work by the concerted action a labor dispute causing or likely to cause a strike
of employees. In both kinds of strike, the strike is or lockout in an industry indispensable to the
not the result of a labor or industrial dispute. national interest, the Secretary of Labor
exercises the power of compulsory arbitration
As the name implies, workers go on a SYMPATHY over the labor dispute, meaning, that as an
STRIKE to show their sympathy for certain workers exception toEMPLOYEE
MANAGERIAL the general rule, theto
refers Secretary of
one whose
who are on strike. On the other hand, in a Laborduty
primary now has the power
consists to set
of the or fix wages, of
management
GENERAL STRIKE, workers in the country or in a the rates of pay, hours
establishment inofwhich
work or
heterms and
is employed or
region, province, or city or municipality go on a of aconditions
department of employment by thereof, and to
or subdivision
other Page 32 of 108
determining what should be the CBA of the parties. officer and did not commit any illegal act) may be
(See Divine Word University vs. Secretary of Labor, entitled to reinstatement.
213 SCRA 759)
ALTERNATIVE ANSWER: Right to Strike; Effects; illegal strike (1995)
What is involved in the case in the question is a If the strike is declared illegal, will the strikers be
corporation engaged in the manufacturing of entitled to their wages for the duration for the strike?
consumer products. If the consumer products that Explain, SUGGESTED ANSWER:: NO. The
are being manufactured are not such that a strike applicable doctrine will be: No work, no pay, unless
against the company cannot be considered a strike there is an agreement to pay strike duration pay.
in an Industry indispensable for the national interest,
then the assumption of Jurisdiction by the Secretary
of Labor is not proper. Therefore, he cannot legally
exercise the powers of compulsory arbitration in the Right to Strike; Effects; illegal strike (2000)
labor dispute. A division manager of a company taunted a union
officer two days after the union submitted to the
Right to Strike; Compulsory Arbitration; Department of Labor and Employment (DOLE) the
Certification to NLRC (1995) result of the strike vote. The division manager said:
What are the objectives of the Secretary of Labor The union threat of an unfair labor practice strike is
and Employment in certifying a labor dispute to the phony or a bluff. Not even ten percent (10%) of your
NLRC for compulsory arbitration? Explain. members will join the strike." To prove union member
SUGGESTED ANSWER: support for the strike, the union officer immediately
The objectives of the Secretary of Labor and instructed its members to cease working and walk
Employment in certifying a labor dispute to the out. Two hours after the walkout, the workers
NLRC for compulsory arbitration is to prevent a work voluntarily returned to work.
stoppage that may adversely affect the national A. Was the walkout a strike? And if so, was it
interest and to see to it that a labor dispute is a valid activity? (3%)
expeditiously settled. B. Can the union officer who led the short walk-
out, but who likewise voluntarily led the workers back
Right to Strike; Effects; Hired Replacements to work, be disciplined by the employer? (3%)
(2006)
If due to the prolonged strike, ROSE Corporation SUGGESTED ANSWERS:
hired replacements, can it refuse to admit the a) Yes, it was a strike because there was a work
replaced strikers? stoppage by concerted action and there is an
SUGGESTED ANSWER: existing labor dispute. It was not a valid activity
No. While present law recognizes the right of the because the requisites for a valid strike were not
employer to continue his business in the course of observed, (Art. 212, (o), (l) Labor Code).
an economic strike, it assures the right of the strikers
to return to their former positions at the expense of b) Yes, the employer may discipline the union
the replacements. Art. 264(a) of the Labor Code officer. An illegal strike is a cause for the union
provides that mere participation of a worker in a officer to be declared to have lost his employment
lawful strike shall not constitute sufficient ground for status. [Art 263 (c), (d),(e), (f); Art 264 (a), Labor
termination of his employment, even if a replacement Code].
had been hired by the employer during such lawful
strike (PT&T v. NLRC, Right to Strike; Effects; Strikers illegal Acts
G.R. No. 109281, December 7, 1995; Diwa ng (2006)
Pagkakaisa v. Filtex International Corporation, Nos. Assuming the company admits all the strikers, can it
L-23960 & L-23961, February 26, 1968). later on dismiss those employees who committed
illegal acts?
Right to Strike; Effects; illegal strike (1995) SUGGESTED ANSWER:
Are the strikers in an illegal strike entitled to No, when the company admits all the strikers, it is
reinstatement under the Labor Code? Explain. deemed to have waived the issue and condoned the
SUGGESTED ANSWER: strikers who committed illegal acts (Citizen's Labor
NO. Union officers and members who commit illegal Union v. Standard Vacuum Oil Co., G.R. No. L-
acts lose their employment status. Any union officer 7478, May 6,1955; TASLI-ALU v. CA, G.R. No.
who knowingly participates in an illegal strike, and 145428, July 7, 2004).
any worker or union officer who knowingly
participates in the commission of illegal acts during a Right to Strike; illegal dismissal (2003)
strike may be declared to have lost his employment Magdalo, a labor union in Oakwood, a furniture
status. Participants (not a union manufacturing firm, after failing in its negotiations
with Oakwood. filed with the Department of Labor
and Employment (DOLE) a notice of strike. The
DOLE summoned Magdalo and Oakwood for Thus, the company committed an illegal lockout in
conciliation hearings to resolve the deadlock. refusing to accept the offer of the strikers to return to
Unable to agree despite efforts of the DOLE, work. Under the set of facts in the question, the
Magdalo called a strike participated in by its Company did not give the required notice to lockout,
officers and union members including Cesar much less did it observe the necessary waiting
Trinio, a rank-and-file employee, who led the "walk period, nor did it take a needed vote on the lockout.
out." Oakwood filed a petition to declare illegal the Thus, the lockout is illegal.
strike which Magdalo staged without observing the
seven-day ban under the Labor Code. Oakwood Right to Strike; illegal strike; Loss of
claimed that the strike being illegal, all those who Employment (1994)
Union A filed a Notice of Strike with the National
participated therein, including Cesar Trinio, could
Conciliation and Mediation Board (NCMB) of the
be dismissed as, in fact, they were so dismissed
Department of Labor and Employment. Upon a
by Oakwood. Decide
SUGGESTED ANSWER: the case. motion to dismiss by the Company on the ground that
When Oakwood dismissed all the officers and the acts complained of in the notice of strike are non-
members of the union who participated in the strike strikeable. The NCMB dismissed the Notice of Strike
which was declared illegal because it was staged but continued to mediate the issues contained therein
without observing the seven-day ban under the to prevent the escalation of the dispute between the
Labor Code. parties. While the NCMB was conducting mediation
proceedings, the Union proceeded to conduct a strike
Oakwood illegally dismissed the union members, vote as provided for under the Labor Code. After
including Cesar Trinio. The Labor Code provides that observance of the procedural processes required
a union officer who knowingly participates in an under the Code, the Union declared a strike.
illegal strike loses his employment status. Thus, the
union officers were legally dismissed. But for a union 1Is the strike legal?
member to lose his employment status, he should 2Can the employer unilaterally declare those who
have committed illegal acts during the strike, like acts participated in the strike as having lost their
of violence, coercion or intimidation or obstruction of employment status?
ingress to or egress from the employer's premises for 3What recourse do these employees (declared by
lawful purposes or obstruction of public the employer to have lost their employment status)
thoroughfares. The union members, including Cesar have, if any?
Trino, did not commit any of these acts. Thus, it
would be illegal to dismiss them.
SUGGESTED ANSWER:
1) The Company's action is valid. Any declaration (b) When the Secretary of Labor assumes
of a strike after the Secretary of Labor has assumed jurisdiction over a strike, all striking employees shall
jurisdiction over a labor dispute is considered an immediately return to work and the employer shall
illegal act, and any worker or union officer who immediately resume operations and readmit all
knowingly participates in a strike defying a return-to- workers under the same terms and conditions
work order may consequently be declared to have prevailing before the strike. [Art. 263(q)].
lost his employment status and forfeited his right to
be readmitted, having abandoned his position, and
so could be validly replaced.
SUGGESTED ANSWER:
2) Considering that the workers who defied the return-
to-work order are deemed to have abandoned their
employment, the only obligation required of an
employer is to serve notices declaring them to have
lost their employment status at the worker's last
known address. (Sec. 2 Rule XIV, Book V, Rules
Implementing the Labor Code)
3) The proper remedy of an employer to ensure that Self Organization; Govt Employees (2004)
only the employees are qualified to hold a B. Because of alleged unfair labor practices by the
certification election is to move for the exclusion of management of GFI System, a government-owned
those whom he alleges to be managerial personnel. and controlled financial corporation, its employees
walked out from their jobs and refused to return to
work until the management would grant their union
Self Organization; Certification Election; official recognition and start negotiations with them.
Unorganized Establishment (2003)
There are instances when a certification election is
mandatory. What is the rationale for such a legal The leaders of the walk-out were dismissed, and the
mandate? other participants were suspended for sixty days. In
SUGGESTED ANSWER: arguing their case before the Civil Service
According to the Labor Code, in any establishment Commission, they cited the principle of social justice
where there is no certified bargaining agent, a for workers and the right to self-organization
and collective action, including the right to strike. They (Mactan Workers Union v. Aboitiz, 45 SCRA
claimed that the Constitution shielded them from any 577 (1972|)
penalty because their walk-out was a concerted c) It is the instrumentality through which an
action pursuant to their rights guaranteed by the basic individual laborer who is helpless as against a
law. powerful employer may, through concerted effort and
activity, achieve the goal of economic well-being.
Is the position taken by the walk-out leaders and (Gullarno v. CIR, 32 SCRA 307 [1993]).
participants legally correct? Reason briefly. (5%)
SUGGESTED ANSWER:
The position taken by the walk-out leaders and Self Organization; Membership Policy (1998)
participants is not legally correct. They are A labor union lawyer opined V. that a labor
government employees, and as such, they do not organization is a private and voluntary organization;
have the right to strike. According to the actual hence, a union can deny membership to any and all
wording of Section 3 of Article XIII of the Constitution, applicants. Is the opinion of counsel in accord with
the State "shall guarantee the rights of all workers to law? [5%]
self-organization, collective bargaining and SUGGESTED ANSWER:
negotiations, and peaceful concerted activities NO, the opinion of counsel is not in accord with law.
including the right to strike in accordance with law." The Labor Code (in Article 249 (a and b) provides
that a labor organization has the right to prescribe its
own rules for the acquisition or retention of
Thus, the last clause of the above-quoted provision membership, but it is an unfair labor practice act for a
of the Constitution makes it very clear: the right to labor organization to restrain or coerce employees in
strike is not constitutional, it is statutory because the the exercise of their right to self-organization. Thus, a
right should be "in accordance with law". And there is labor organization cannot discriminate against any
as yet no law giving government employees the right employee by denying such employee membership in
to strike. the labor organization on any ground other than the
usual terms and conditions under which membership
ANOTHER SUGGESTED ANSWER: or continuation of union membership is made
NO. What Art. XIV, Sec. 3 of the 1987 Constitution available to other members.
guarantees is "the right to strike in accordance with
law." Assuming that what we have is a chartered ANOTHER SUGGESTED ANSWER:
government-owned and controlled corporation, they Yes, the legal opinion of counsel, on the nature of a
cannot, under EO 180 and related jurisprudence, labor union and its admission policy is in accord
stage such walk-out which is basically a case of with law, but must be qualified. The Supreme Court
strike. ruled in Salunga v. CIR, 21 SCRA 216 (1967) as
follows:
Even if GFI was organized under the corporation Generally, a state may not compel ordinary
law, still no such walk-out is allowed without the voluntary association to admit thereto any given
employees' complying with the requirements of a individual, because membership therein maybe
valid strike, among which is that said strike or walk- accorded or withheld as a matter of privilege.
out should be validly grounded on a (a) deadlock in
collective bargaining, or (b) unfair labor practice, The same case further ruled that the law can compel
either of which is not present here. a labor union to admit an applicant for membership
when the union is -
Self Organization; Importance (1996) The rule is qualified in respect of labor unions
1) What is the importance of labor organizations? holding a monopoly in the supply of labor, either in
SUGGESTED ANSWER: a given locality or as regards a particular
A labor organization exists in whole or in part for the employer with which it has a closed-shop
purpose of collective bargaining or of dealing with agreement. The reason is that [union security
employers concerning terms and conditions of provisions] cause the admission requirements of
employment. Employees may form labor organizations trade unions to be affected with public interest.
for their mutual aid and protection. (See Arts. 212(a)
and 243 of the Labor Code) Self Organization; Right to Disaffiliate from
ALTERNATIVE ANSWER: the Local Union; illegal dismissal (1994)
The importance of labor unions are: In the Collective Bargaining Agreement (CBA)
a) The enhancement of democracy and the between Royal Films and its rank-and-file Union
promotion of social justice and development. b) As (which is directly affiliated with MFF, a national
instrumentalities through which worker federation), a provision on the maintenance of
welfare may be promoted and fostered, membership expressly provides that the Union
can demand the dismissal of any member
employee
who commits acts of disloyalty to the Union as
provided for In its Constitution and By-Laws. The
same provision contains an undertaking by the
Union (MFF) to hold Royal Films free from any
and all claims of any employee dismissed.
During the term of the CBA, MFF discovered that
certain employee members were initiating a move to
disaffiliate from MFF and join a rival federation,
FAMAS. Forthwith, MFF sought the dismissal of its
employee members initiating the disafiliation
movement from MFF to FAMAS. Royal Films, relying
on the provision of the aforementioned CBA,
complied with MFFs request and dismissed the
employees Identified by MFF as disloyal to it.
(1) Will an action for Illegal dismissal against
Royal Films and MFF prosper or not?
(2) What are the liabilities of Royal and MFF to the
dismissed employees, if any?
individual member of the contracting union; [San Jose Electric Service Cooperative v. Ministry
Provided, however, that attorneys fees may be of Labor, 173 SCRA 697 (1989)]
charged against union funds in an amount to be
agreed upon by the parties. Any contract, Self Organization; Union Dues; Assessment
agreement or arrangement of any sort to be (2002)
contrary shall be null and void." The union deducted P20.00 from Rogelio's wages
for January. Upon inquiry he learned that it was for
(b) The assessment of P 100.00 as negotiation death aid benefits and that the deduction was made
fees charged to each individual union member and pursuant to a board resolution of the directors of the
payable to union officers is also not valid, for the union. Can Rogelio object to the deduction? Explain
same reason as stated above. The assessment is briefly. (5%)
an act violative of Art. 222(b). SUGGESTED ANSWER:
ALTERNATIVE ANSWER: Yes. In order that the special assessment (death aid
(a) The collection of the amount assessed on the benefit) may be upheld as valid, the following
individual members to answer for the attorney's fees requisites must be compiled with: (1) Authorization
would be valid if it was authorized by a written by a written resolution of the majority of all the
resolution of a majority of all the members in a members at the general membership meeting duly
general membership meeting called for the purpose. called for the purpose; (2) Secretary's record of the
meeting; and (3) Individual written authorization for
SUGGESTED ANSWER: the check-off duly signed by the employee
(b) The assessment
1) The action for illegal of P100.00
dismissal fromwilltheprosper.
Individual The concerned. [ABS-CBN Supervisors Employees Union
members
right of a of the Welga
local union to Labor Union for
disaffiliate services
from its mother Members v. ABS-CBN Broadcasting Corp, and Union
rendered
federationbyisthe union officers
well-settled. A in the CBA
local union, being a Officers, 304 SCRA 489 (1999)]
negotiations
separate and voluntary association,authorized
would be valid if it was is free to by a
serve
written resolution
the interest of all ofits amembers
majority of all the members
including the freedom in In the problem given, none of the above requisites
a
togeneral membership
disaffiliate meeting dulywarrant
when circumstances called for theright
this were complied with by the union. Hence, Rogelio
purpose.
is consistent(Art. 241(N)].
with the constitutional guarantee of can object to the deduction made by the union for
freedom of association. Thus, the Act of initiating being Invalid.
Self
moveOrganization;
to disaffiliate Unions; is not an Assessments
act of disloyalty.
(2001)
(Tropical Hut. Employee's Union-CGW, et al. vs. Self Organization; Union Dues; Assessments
(b) What Hut
Tropical requisites
Food must Market, a Union
Inc., comply
etal, G.R. withNos.
beforeL- (1997)
it^3495-99,
can validly impose
January 20. special
1990) assessments against its Arty. Facundo Veloso was retained by Welga Labor
ALTERNATIVE
members for incidental ANSWER: expenses, attorney's fees, Union to represent it in the collective bargaining
The action for
representation expenses illegaland dismissal will prosper.
the like? (3%). negotiations. It was agreed that Atty. Veloso would
Disaffiliation cannot be considered an act of be paid in the sum of P20,000.00 as attorney's fees
disloyalty. TheANSWER:
SUGGESTED very essence of self-organization is for his assistance in the CBA negotiations.
for the
The Laborworkers
Code to(inform Art. a241(n))
group provides
for the effective
that "no
enhancement
special assessmentsand protection of common fees
or other extraordinary interest.
may
(PICEWO
be v. People
levied upon Industrialof&aCommercial
the members Corp.,
labor organization After the conclusion of the negotiations. Welga
112 SCRA
unless 440) by a written resolution of a majority
authorized Labor Union collected from its individual members
of all the members at a general membership meeting the sum of P100.00 each to pay for Atty. Veloso's
2)
duly MFF canforbethe
called held liable to pay the backwages of
purpose." fees and another sum of Pl00 each for services
the dismissed employees. Royal can be held jointly rendered by the union officers. Several members of
and severally
ANOTHER liable for backwages
SUGGESTED ANSWER: if it acted with the Welga Labor Union approached you to seek
undue
In the haste
case of in dismissing
ABS-CBN Employees the employees (Manila
Supervisors advice on the following matters. a) Whether or not
Cordage
Union vs. Co. v. CIR,Boardcasting
ABS-CBN 78 SCRA 398). Corp.,Inand addition,
Union the collection of the amount
Royal canG.R.
Officers, be ordered
No. 106518, to reinstate
March the dismissed
11,1999, the assessed on the individual members to answer
employees.Court ruled that the following are the
Supreme for the Attorney's fees was valid. b) Whether or not
requisites: the assessment of Pl00 from
Self Organization;
(1) Authorization by aRightwrittentoresolution
Self-Organization
of the the individual members of the Welga Labor
of CoopofEmployees
majority all the members (2002)at the general Union for services rendered by the union
membership
Do employees meeting duly calledhave
of a cooperative for the purpose;
a right to form officers in the CBA negotiations was valid.
a union? Explain briefly. (2%) SUGGESTED ANSWER:
(2) Secretary's ANSWER:
SUGGESTED record of the minutes of the (a) The assessment of P100.00 from each union
meeting;
Employees andwho are members of a cooperative member as attorney's fees - for union negotiation,
(3) Individual
cannot form a unionwritten authorization
because, for check-off
as members, they are is not valid. Art. 222(b) of the Labor Code, reads:
duly
owners signed
and by the employee
owners cannot bargainconcerned. (See also:
with themselves. "No attorneys fees, negotiation fees or similar
Gabriel
However, vs.employees
Secretary ofwho Labor,
are G.R. No. 115949,
not members of the charges of any kind arising from any collective
March 16* 2000).
cooperative can form a union. bargaining negotiations or conclusion of the
collective agreement shall be imposed on any
Self
Appeals,Organization;
332 SCRA 427, Unions;
(2000), Financial
Lim v. NLRC,Records 303
SCRA 432, (1999)]
(1999)
ANOTHER
FACTS: Polaris SUGGESTEDDrug Company ANSWER: had an existing
Also, the Labor Code provides that an examination Yes. The General
Collective BargainingManager may be held
Agreement withjointly and
Polaris
of the books of a union shall not be conducted severally
Workers Union liable (PWU)
for back whichwageswas due of toanexpireillegally
on
during the sixty (60) day freedom period nor within dismissed
May 31, 1999. employeePWU ifhad he aortotal
shemembership
actually authorized
of one
thirty (30) days immediately preceding the date of or ratified [100]
hundred the wrongful dismissal
rank-and-file of the employee
employees of the
election of union officials. under
company. the Mike
rule ofBarela,
respondeat superior.
a militant member In caseof the of
illegal
union, dismissal,
suspectedcorporate that the directors
union and officerswere
officers are
In the case, the complaint was filed on May 10, solidarity
misappropriating liable unionwith funds the ascorporation
no financial report where
1999 which is within the freedom period of the termination of employment are
was given to the general membership during the done with malice or
current CBA which was to expire on May 31. 1999. bad faith. [Bogo-Medellin Sugar
union's general assembly. Hence, Mike Barela Planters Assoc., Inc.
v. NLRC, 296
prepared a swornSCRAwritten
108, (1998)]
complaint and filed the
Self Organization; Unions; Financial Records same with the Office of the Secretary of Labor on
(2001) Self-Organization
May 10, 1999, petitioning (2002)for an examination of the
(a) Under what conditions may the Secretary of Mang
financial Bally,
records owner of a shoe repair shop with only
of PWU.
Labor or his duly authorized representative inquire nine
1. Is the(9) Secretary
workers in his establishment,
of Labor authorized by received
law to
into the financial activities or legitimate labor proposals
examine the forfinancial
collective bargaining
records of the from
union? theIf Bally
so,
organizations? (2%). Shoe Union. IfMang
what power? Ballynot?
not, why refused
(3%) to bargain with the
SUGGESTED ANSWER: workers
SUGGESTED for several reasons. First, his shoe business
ANSWER:
The Labor Code (in Art. 274), the Secretary of Labor The
is justSecretary
a serviceofestablishment.
Labor is expressly Second, authorized
his workers by
and Employment or his duly authorized the Labor
are paid on Code (in Article basis
a piecework 274} to(i.e.,
examine
per shoe the
representative is empowered to inquire into the financial and
repaired) recordsnot onofa timethe basis.
unions to he
Third, determine
has less
financial activities of legitimate labor organizations compliance
than ten (10)or non-compliance
employees with the pertinent
in the establishment. Which
upon the filing of a complaint under oath and duly provisions
reason or of the Labor
reasons is/areCode and to Explain
tenable? prosecute any
briefly.
supported by the written consent of at least twenty violation of the law and the union constitution-andby-
(2%)
(20%) percent of the total membership of the labor SUGGESTED
laws. But this authorityANSWER: may be exercised only upon
organization concerned and to examine their books NONE.
the filingFirst, of aMang complaintBally'sundershoeoath business
and duly is a
of accounts and other records. commercial
supported byenterprise,the written albeit a service
consent of at establishment.
least twenty
Second,
percent (20%)the mere facttotal
of the that membership
the workers are of thepaid on a
labor
Self Organization; Unions; Membership; piece-rate
organizationbasis does not negate their status as
concerned.
Dismissal in Bad Faith (2002) ALTERNATIVE
regular employees. ANSWER:
Payment by piece is just a method
A On what ground or grounds may a union member Among
of the rights and conditions
compensation does not defineof membership
the essence in a of
be expelled from the organization? (3%) labor organization
the relation. [Lambo is v.
theNLRC,
right implied
317 SCRAby the 420 proviso
(1999)].
in the Labor
Third, Code (Article
the employees' right241 (m))organization
to self stating that is thenot
B. May the general manager of a company be held books of accounts
delimited and other records of the financial
by their number.
jointly and severally liable for backwages of an activities of any labor organization shall be open to
illegally dismissed employee? (2%) inspection by any officer or member thereof during
SUGGESTED ANSWER: The
officeright
hours.to self-organization covers all persons
A. Union members may be expelled from the labor employed in commercial, industrial and agricultural
organization only on valid grounds provided for in enterprises
As a union member, and in religious,
Mike Barela charitable,
could medical,
file an intra- or
the Union Constitution, By-Laws, or conditions for educational
union case that Institutions
may entail whether
the actoperating for profitof
of the Secretary
union membership. or not {Art.
Labor 243, Labor
examining Code} records of the union.
the financial
ANOTHER SUGGESTED ANSWER: (See La Tondena Workers Union v. Secretary of
Whenever appropriate for any violation of the rights Self-Organization;
Labor and Employment, Dismissal
239 SCRA due to Union
117)
as: a) Refusal to pay union dues and special Activities (2004)
2. Under
A, B, C the andfacts given above,accountant,
D (treasurer, could an examination
elementary
assessments; b) Disloyalty to the union; and c) or audit of Principal,
department the financialand records
secretary of ofthetheunion be
Director,
Violation of the constitution and by-laws of the ordered? Why? regular
respectively), (2%) employees of a private
SUGGESTED ANSWER:
educational institution, were administratively charged
union. Under the facts given in
for their participation in the question,
a picket heldaninexamination
front of the
or audit of the financial records of
campus after office hours. Several facultythe union can not
members,
SUGGESTED ANSWER: be ordered because
non-academic for such
staff and examination
students joined the or audit to
peaceful
B. Yes. If it is shown that he acted in bad faith, or take place,
prayer rallythere should by
organized be adisgruntled
complaint under oath to
employees
without or in excess of authority, or was motivated by and duly certain
protest supported by written
alleged consent
abuses of oftheat least
incumbent
personal ill-will in dismissing the employee, the twenty (20%)
School per cent
Director. of the total membership
Subsequently, of the
the rank-and-file
general manager may be held jointly and severally labor organization
employees concerned.
succeeded In thisthe
in forming case, theand only
first
liable for the backwages of an illegally dismissed aforementioned
union of the School. requirement was not fulfilled. It was
employee. [ARB Construction C. v. Court of only a sworn
During the investigation, the administration of the Labor Code and Sec. 3 of Executive Order
discovered that two (2) days prior to the rally, A, B, C No. 180)
and D attended the meeting of the Schools
employees association which planned the protest Self-Organization; Right to Join (2000)
activity. Two well-known organizers/leaders of a (1) Do workers have a right not to join a labor
national labor federation were also present. organization? (3%)
(2) Do the following workers have the right to self-
A, B, C and D were dismissed by the School on the organization? Reasons/basis (2%)
ground of violating the Labor Code which prohibits Employees of non-stock, non-profit
managerial employees to join, assist or form any organizations?
labor organization. Alien employees?
SUGGESTED ANSWER:
Y's case against Z will not prosper, because Z is not
the employer of Y. The employer of "Y" is "X". "Y' Carissa is correct in stating that there was no need
would be an employee of "Z" if "X" here is a labor- for prior referral to the Committee on Decorum and
only contractor but X is not a labor-only contractor. Discipline of her complaint because nothing in the
He possesses the necessary capital and equipment law precludes the victim of sexual harassment from
needed to effectively carry out its commitment as a instituting a separate and independent action for
service contractor. damages and other affirmative relief. (Sec. 6, R.A.
No. 7877)
Applying the control test, the fact that "Z's"
supervisors and employees give verbal instructions Employment; Women; Sexual Harassment
to Y as to how and where to perform his work does Act (2006)
not necessarily mean that thereby he is under the As a condition for her employment, Josephine
control of Z as regards his employment as long as X, signed an agreement with her employer that she
as service contractor, actually directs the work
permitted by the Company to position themselves ALTERNATIVE ANSWER:
proximate to the Company premises. These a) My analytical framework will be an analysis of the
independent operators are allowed by the Company law on Independent contractor and labor only
to wait on Company customers who would be contracting.
requiring their services. In exchange for the privileges
of favorable recommendation by the Company and If there is a valid INDEPENDENT CONTRACTOR
immediate access to the customers in need of their situation, Mr. Dado will be the direct employer, and
services, these independent operators allow the the Metro Grocery will be the indirect employer.
Company to collect their service fee from the
customer and this fee is given back to the If there is a LABOR-CONTRACTOR only relationship,
Independent operator at the end of the week. In the Metro Grocery will be the employer as it directly
effect, they do not earn fixed wages from the hired the employees.
Company as their variable fees are earned by them
from the customers of the Company. The Company SUGGESTED ANSWER:
has no control over and does not restrict the b) The legal significance is the determination of
methodology or the means and manner by which employee-employer relationship, which gives rise to
these operators perform their work. These operators certain rights and obligation of both employer and
are not supervised by any employee of the Company employee, such as SSS membership, union
since the results of their work is controlled by the membership, security of tenure, etc.
customers who hire them. Likewise, the Company
has no control as an employer over these operators. Independent Contractor; Liabilities (2004)
They are not subject to the regular hours and days of A. Clean Manpower Inc. (CMI) had provided janitorial
work and may come and go as they wish. They are services to the National Economic Development
not subject to any disciplinary measures from the Authority (NEDA) since April 1988. Its service
Company, save merely for the inherent rules of the premises
contract of Perfectevery
was renewed Triangle,
three an auto accessory
months. However,
general behavior and good conduct" {Ushio shop.
in the Hebiddingfiled aheld complaint
on July for 1992,
illegal CMIdismissal,
was
Marketing v. NLRC, 294 SCRA 673(1998)] overtime pay
disqualified andand other benefits
excluded. In 1993,against Perfect
six janitors of
Triangle,
CMI formerlywhich refused
assigned at to
NEDA pay filed his aclaims on the
complaint for
ground that Pandoy
underpayment was not
of wages. its employee
Both CMI and NEDA but was werean
Independent Contractor vs. Labor-Only independentascontractor.
impleaded respondents It was common
for failure practicewith
to comply for
Contracting; Four-Fold Test (2000) shopsWage
NCR like Perfect
OrdersTriangle
Nos. 01 to andcollect
02, whichthe service fees
took effect
Metro Grocery Inc. arranged with Mr. Juan Dado, a on fromNovember
customers and 1, pay
1990theand sameJanuaryto the independent
2, 1992,
Barangay Chairman, to provide the grocery with respectively.
contractors at the end of each week. The auto shop
workers who will work as cashiers, bag boys, shelf explained that Pandoy was like a partner who worked
counter helpers and sanitation workers. The grocery Shouldwithin itsNEDA,
premises, a government
using parts provided agency by subject
the shop,to
will pay Mr. Dado an amount equivalent to the direct budgetary
but otherwise constraints,
Pandoy was be held
free liable solidarily
to render servicewithin
and hidden costs of the wages of each worker CMI for theauto
the other payment
shops.ofOn salary
the differentials
other hand,due the
Pandoy
assigned, plus ten percent (10%) to cover the complainants?
insisted that heCite stillthewas
legalentitled
basis oftoyour the answer.
benefits
administrative costs related to their arrangement. Mr. (5%)
because he was loyal to Perfect Triangle, it being a
Dado, in turn, will pay directly the workers their SUGGESTED
fact that he didANSWER: not perform work for anyone else. Is
wages. As far as the workers are concerned, Mr. NEDA Pandoyshall be held
correct? solidarily
Explain briefly.liable
(5%)with CMI for the
Dado is their employer. A group of concerned workers payment of salary differentials due to the
consulted you if Mr, Dado is really under the law their SUGGESTED
complainants, ANSWER:
because NEDA is the indirect employer
employer. Pandoy
of said is not
complainants. correct.The HeLabor is not
Code an employee
provides that
A. How will you analyze the problem in order because
xxx (A) he person,
does not meet the fourfold
partnership, test for himor
association
to formulate your answer? (3%) to be an employee
corporation which, not of being
PerfectanTriangle.
employer, All contracts
that he
B. What is the legal significance, if any, of the couldanclaim
with is: he worked
independent contractor within
for the theperformance
premises ofof
question of the concerned workers as to who is their Perfect
any work, Triangle.
task, jobPandoy wasxxx
or project" NOT engaged
"shall as and
be jointly an
employer? (3%) employeeliable
severally by Perfect
with hisTriangle.
contractorHe or was NOT paidto
subcontractor
SUGGESTED ANSWER: wagesemployees
such by Perfect(ofTriangle. PerfectorTriangle
the contractor does
subcontractor)
a) I will analyze the problem by applying the fourfold NOTto the have
extentthe powerperformed
of work to dismiss under himthealthough
contract
test of employer-employee relationship. I will examine if xxx."
Perfect Triangle
(Arts. 106 and may
107, notLabor
continueCode)to allow him to
Mr. Dado exercises power of control or supervision work within its premises. And most important of all,
over the workers' manner and method of doing their Pandoy was NOT under the control of Perfect
work. Control is the most important factor in examining Labor-Only
Triangle as Contract regards the vs. work
Job Contracting
he performs for
employer-employee relationship. The other factors are (1997)
customers.
hiring, payment of wages, and power to dismiss, I will Distinguish between "job contracting" and "labor-
also examine whether there was job contracting or The only Supreme
contracting." Court has ruled: "In stark contrast to
labor-only contracting. the Company's
SUGGESTED regular employees, there are
ANSWER:
independent, free lance operators who are
When a person, not being an employer, contracts with B. Sta. Monica Plywood Corp. is liable for the claims
an independent contractor for the performance of any of the workers hired by Arnold. A finding that Arnold
work, task, job or project, there is "JOB is a labor only contractor is equivalent to declaring
CONTRACTING." When the independent contractor that there exist an employer-employee relationship
does the work that is contracted out, he is not under between Sta. Monica Plywood Corp. and workers
the control of the person who contracted out the work hired by Arnold. This is so because Arnold is
to be done. considered a mere agent of Sta. Monica Plywood
Corp. [Lim v. NLRC, 303 SCRA 432, (1999); Baguio
In "LABOR-ONLY CONTRACTING", a person et al, v. NLRC, 202 SCRA 465 (1991)]
supplies workers to an employer. Said person does
not have substantial capital or investments in the
form of tools, equipment, machineries, work Labor-Only Contractor vs. Independent
premises, among others, and the workers recruited Contractor (1994)
and placed by such person are performing activities 1) What is a "labor-only" contract? 2) Distinguish the
related to the principal business of the employer to liabilities of an employer who engages the services
whom the workers are supplied. of a bonafide "independent contractor" from one
who engages a "labor-only" contractor?
Labor-Only Contractor (2002)
Sta. Monica Plywood Corporation entered into a SUGGESTED ANSWER:
contract with Arnold for the milling of lumber as well 1) "LABOR-ONLY" CONTRACT is a contract
as the hauling of waste wood products. The company between an employer and a person who supplies
provided the equipment and tools because Arnold workers to such employer where the person
had neither tools and equipment nor capital for the supplying workers does not have substantial capital
job. Arnold, on the other hand, hired his friends, or investment in the form of tools, equipment,
relatives and neighbors for the job. Their wages were machineries, work premises, among others, and the
paid by Sta. Monica Plywood Corp. to Arnold, based workers recruited and placed by such person are
on their production or the number of workers and the performing activities which are directly related to the
time used in certain areas of work. All work activities principal business of such employer. (Art. 106, Labor
and schedules were fixed by the company. Code)
A. Is Arnold a job contractor? Explain briefly. (2%) 2) A person who engages the services of a bona fide
B. Who is liable for the claims of the workers "INDEPENDENT CONTRACTOR" for the
hired by Arnold? Explain briefly. (3%) performance of any work, task, job or project is the
SUGGESTED ANSWER: indirect employer of the employees who have been
A. No. In two cases decided by the Supreme Court, it hired by the independent contractor to perform said
was held that there is "job contracting" where (1) the work, task, job or project.
contractor carries on an independent business and
undertakes the contract work in his own account, In the event that the independent contractor fails to
under his own responsibility according to his own pay the wages of his employees, an indirect
manner and method, free from the control and employer, in the same manner and extent that he is
direction of his employer or principal in all matters liable to employees directly employed by him, is
connected with the performance of the work except JOINTLY and SEVERALLY LIABLE with the
as to the results thereof; and (2) the contractor has Independent contractor to the employees of the latter
substantial capital or investment in the form of tools, to the extent of the work performed under the
equipment, machineries, work premises and other contract.
materials which are necessary in the conduct of his
business. [Lim v. NLRC, 303 SCRA 432 (1999); As for the person who engages the services of a
Baguio v. NLRC, 202 SCRA 465(1991)] "labor only" contractor, the latter is considered
merely as an agent of the former who shall be
responsible to the workers hired by the "labor only"
In the problem given, Arnold did not have sufficient contractor in the same manner and extent as if he
capital or in vestment for one. For another Arnold directly employed such workers.
was not free from the control and direction of Sta.
Monica Plywood Corp. because all work activities ALTERNATIVE ANSWERS;
and schedules were fixed by the company. a) An employer who engages the services of a
bona fide "independent contractor" is SOLIDARILY
Therefore, Arnold is not a job contractor. He is LIABLE with his contractor or sub-contractor only for
engaged in labor-only contracting. non-payment or underpayment of wages and other
labor standards provisions of the Labor Code,
SUGGESTED ANSWER: whereas an
employer who engages a "labor-only" contractor of Service Exporters v. Drilon, 163 SCRA 386
is liable for all benefits, terms and conditions of 11988]).
employment that it normally grants to its regular or ANOTHER SUGGESTED ANSWER:
direct employees. The DOLE orders should be set aside. It is true that
the Migrant Workers and Overseas Filipinos Act,
b) An employer who deals with a bona-fide particularly its Section 5, could be the basis of the
independent contractor shall be liable only power of DOLE to effect a ban on the deployment of
subsidiarily, if the contractor or sub-contractor fails to OFWs by XYZ. If the ban, however, is for the
pay the wages to the workers in accordance with the purpose of preventing XYZ from transporting
Labor Code. extremists to terrorist training camps abroad, this is a
police and national security problem better dealt with
Upon the other hand, an employer who deals by the police or the Office of the National Security
with a "labor-only" contractor shall be primarily Adviser.
responsible to the workers in the same manner
and extent as if the latter were directly employed More importantly, the cancellation of the license of
by him. (Arts 106-107, Labor Code) XYZ requires notice and hearing. Absent such notice
and hearing, the order of cancellation of the
Recruitment & Placement; Cancellation; Secretary of Labor and Employment is null and void
Certificate of Registration; Travel Ban (2004) because of the denial of due process.
Concerned Filipino contract workers in the Middle
East reported to the Department of Foreign Affairs Recruitment & Placement; illegal recruitment
(DFA) that XYZ, a private recruitment and placement to economic sabotage (2005)
agency, is covertly transporting extremists to terrorist (1) During the open forum following your lecture to a
training camps abroad. Intelligence agencies of the group of managers and HRD personnel, you were
government allegedly confirmed the report. asked the following questions:
(a) What qualifying circumstances will convert "illegal
recruitment" to "economic sabotage," thus subjecting
Upon being alerted by the DFA, the Department of its perpetrator or perpetrators to a penalty of life
Labor and Employment issued orders cancelling the imprisonment and a fine of at least P500,000.00?
licenses of XYZ, and imposing an immediate travel Please explain your answer briefly. (3%)
ban on its recruits for the Middle East. XYZ
appealed to the Office of the President to reverse
and set aside the DOLE orders, citing damages from
loss of employment of its recruits, and violations of
due process including lack of notice and hearing by
DOLE. The DOLE in its answer claimed the
existence of an emergency in the Middle East which
required prompt measures to protect the life and limb
of OFWs from a clear and present danger posed by
the ongoing war against terrorism.
The Labor Code does not purport to create a lien in 3. The decision of the Labor Arbiter for XYZ & Co.
favor of workers or employees for unpaid wages to pay a sum of money to Caspar was based on an
either upon all of the properties or upon any action in personam, not in rem. enforceable against
particular property owned by their employer. any party. (Sundowner Corporation vs. drilon. 180
SCRA 14 (1989)
Wages; Unpaid Wages; Preference of Credit
in favor of Employees (2003) 4. The reference in the Decision to "labor benefits
Premiere Bank, a banking corporation, being the due to an employee is superior to the right of a
creditor-mortgagee of XYZ & Co., a garment firm, mortgagee of property" is misplaced. The
foreclosed the hypothecated assets of the latter. preferential claim rule has no basis and runs
Despite the foreclosure, XYZ & Co. continued its contrary to law and jurisprudence.
business operations. A year later, the bank took
possession of the foreclosed property. The garment
firm's business operations ceased without a
declaration of bankruptcy. Jose Caspar, an employee
of XYZ & Co., was dismissed from employment due
to the cessation of business of the firm. He filed a
complaint against XYZ & Co. and the bank. The
Labor Arbiter, after hearing, so found the company
liable, as claimed by Jose Caspar, for separation
pay. Premiere Bank was additionally found
subsidiarily liable upon the thesis that the satisfaction
of labor benefits due to the employee is superior to
the right of a mortgagee of property. Was the Labor
Arbiter correct in his decision?
MORTGAGE CREDIT is a special preferred credit with respect to their claims as workers against
under the Civil Code in the classification of credits. LCFC.
The preference given by the Labor Code when not Panel: All claims must be filed in
attached to any specific property, is an ordinary insolvency proceedings, which are
preferred credit. outside the jurisdiction of the NLRC
ALTERNATIVE ANSWER: (Republic v. Peralta)
If the asset of an employer which has become Wages; Wage Distortion (1997)
bankrupt or has been liquidated has been (a) Define Wage Distortion.
mortgaged, the proceeds of the sale of said (b) May a wage distortion, alleged by the employees
mortgaged asset is first subject to the lien of the but rejected by the employer to be such, be a valid
person to whom the property is mortgaged. Said lien ground for staging a strike?
is superior to the first preference enjoyed by the SUGGESTED ANSWER:
workers pursuant to the Labor Code.
(a) A WAGE DISTORTION is that brought about
Wages; Unpaid Wages; Preference of Credit where an increase in the prescribed wage rates
in favor of Employees (1999) results in the elimination or severe contraction of
FACTS: Lowland Cement & Factory Company intentional quantitative differences in wage or salary
(LCFC) borrowed P500M from the Development rates between and among employee groups in an
Bank of the Philippines and mortgaged the entire establishment as to effectively obliterate the
company, inclusive of its land, buildings and distinctions embodied in such wage rates based on
equipment, to guarantee the payment of the loan. skills, length of service and other logical bases of
However, because of the economic conditions, differentiation.
LCFC incurred heavy losses and eventually failed to (b) No, the existence of wage distortion is not a valid
pay DBP the required monthly amortizations over a ground for a strike because Art. 124 of the Labor
period of more than one (1) year. In due time, DBP Code provides for a specific method of procedure for
foreclosed the mortgaged assets of LCTC resulting correcting wage distortion. Ilaw at Buklod ng
in the closure of the company and the displacement Manggagawa vs. NLRC, 198 SCRA 586, the Court
of all its employees for want of work. said:-
However, backwages may also include the 13th Backwages; Basis (2001)
month pay which are paid to rank-and-file employees,(a) "A", an employee of Company "B", was found to
as well as benefits arising from a CBA given only tohave been illegally dismissed and was ordered to be
employees in the bargaining unit. Managerial reinstated and paid backwages from the time of
employees cannot be given the same since they are dismissal until actual reinstatement. The case was
ineligible to join a labor organization. elevated all the way to the Supreme Court. By the
time the Supreme Court's decision became final and
executory, B had closed down and was in the
Backwages; Basis (2001) process of winding up. Nonetheless, B paid A his
"A" was hired by company "B" in January 1980 until backwages and separation pay. A complained that
A was illegally dismissed on April 30, 1990 as Bs computation was erroneous in that A's
found by a Labor Arbiter who ordered allowances was not included. Is A correct in his
reinstatement and full backwages from April 30, claim? For what reason(s)? (2%).
1990 until As reinstatement. The Arbiter's decision SUGGESTED ANSWER:
was promulgated on April 29, 1995. B appealed A is correct. After its amendment by Rep. Act No.
claiming, among others, that the award for 6715, the backwages that an employee who has
been unjustly dismissed is entitled to receive is not of closure or cessation of operation due to serious
limited to his full backwages but also includes his business losses or financial reverses.
allowances and the other benefits or their monetary
equivalent. Dismissal; Authorized Causes; Closure &
ANOTHER SUGGESTED ANSWER: Cessation (2001)
In the case of Consolidated .Rural Bank us. NLRC, Company "A" was engaged in the manufacture of
G.R. No. 123810, January 20,1999, the Supreme goods using the by-products of coconut trees and
Court ruled that allowances of the employee should employed some fifty workers who lived in the coconut
be included in the computation of backwages. plantation in Quezon Province. The land upon which
A conducted its operation was subjected to land
reform under R.A. 6657 for distribution to the tenants
Dismissal; Authorized Causes (2002) and residents of the land. Consequently, A had to
B. According to Art 283 of the Labor Code, the close its operations and dismiss its workers. The
lawful or authorized causes for the termination of an union representing the employees demanded that A
employee are: pay the dismissed workers separation pay under Art.
1. installation of labor saving devices 283 of the Labor Code that requires, among others,
2. redundancy the payment of separation pay to employees in cases
3. retrenchment to prevent losses or; of "closing or cessation of operations of the
4. closing or cessation of operation of the establishment or undertaking". Is the union's claim
establishment or undertaking, unless the closing is correct or not? Why? (5%)
for the purpose of circumventing the provisions of the
Labor Code. Art 284 also provides that an employer SUGGESTED ANSWER:
may terminate the services of an employee who has The union's claim is not correct. In the case of
been found to be suffering from any disease and National Federation of Labor vs. NLRC, G.R. No.
whose continued employment is prohibited by law or 127718, March 2. 2000, the Supreme Court ruled
is prejudicial to his health as well as to the health of that there is no obligation to pay separation pay if
his co-employees. the closure is not a unilateral and voluntary act of
the employer.
Dismissal; Authorized Causes vs. Just
Cause (2004) In the question, the closure was brought about not by
What are the authorized causes for a valid dismissal a unilateral and voluntary act of the employer but due
by the employer of an employee? Why are they to the act of government in the implementation of the
distinct from the just causes? (5%) Comprehensive Agrarian Reform Law.
SUGGESTED ANSWERS:
The AUTHORIZED CAUSES for a valid dismissal
are the following: Dismissal; Authorized Causes; Closure &
1installation of labor-saving devices Cessation of Business; Old Age (2006)
2redundancy If the reason for the closure is due to old age of the
3retrenchment to prevent losses brothers and sisters:
4the closing or cessation of operation of the 1. Is the closure allowed by law? (2.5%)
establishment or undertaking 2. Are the employees entitled to separation
benefits? (2.5 %)
SUGGESTED ANSWERS:
The authorized causes for a valid dismissal are
distinct from just causes because where the
dismissal of an employee is based on just causes,
these just causes are acts committed by the
employee which provide the basis for his dismissal.
On the other hand, where the dismissal is based on
authorized causes, these authorized causes are the
results of the proper exercise by the employer of his
management prerogatives.
SUGGESTED ANSWER:
If closure is due to old age
1. YES, it is allowed by law. The employer may go
out of business by closing the same regardless of his
reasons, if done in good faith and due to causes
beyond his control. (LVN Pictures Employees and
Workers Association v. LVN Pictures, No. L-23495,
September 30,1970;J.A,T. General Services v.
NLRC, No. L-26432, September 30, 1970; Alabang
Country Club, Inc. v. NLRC, G.R. No. 157611, August
9, 2005)
SUGGESTED ANSWER:
2. YES. One month pay, or one-half month pay for
every year of service, a fraction of at least 6 months
or more equivalent to one year, whichever is higher.
(Catatista v. NLRC, GR. No. 102422, August
3,1995).
a section or department, or adoption of laborsaving whenRETRENCHMENT
the service capability on of thetheother
work ishand,
in excess
... is
arrangements. Poor forecasting does not invalidate of what
resortedis reasonably
to primarilyneeded
to avoid to or
meet the demands
minimize business
redundancy. Forecasting after all is not fail-free. on losses."
the enterprise. A REDUNDANT POSITION is one
[Wiltshire File Co..Inc. v. NLRC. 193 SCRA 665 rendered superfluous by any number of factors, such
(1991)]. as overhiringvs.
In Escareal of workers,
NLRC, 213 decreased
SCRA 472 volume of the
(1992),
business
Supreme dropping
Court ruled of athat
particular
the lawline previously
does not require
b) Yes, redundancy can exist where work efficiency manufactured financial loss as byathe company
basis or phasing out of a
for redundancy.
has been improved mechanically thus resulting in service activity previously undertaken by the
excessive or superfluous manpower. [Wiltshire File Dismissal; business. Under these conditions,
Authorized Causes;the employer has
Redundancy
Co., Inc. v. NLRC, 193 SCRA 665(1991)]. no legal obligation to keep in its payroll more
(1999)
employees
FACTS: Harvester than are necessary
Independent for theVentures
operation of its
(HIV)
business.
adopted a redundancy program to streamline
Dismissal; Authorized Causes; operations. Positions which overlapped each other, or
Retrenchment
SUGGESTED ANSWER: & Redundancy (2001) which are in excess of the requirements of the
(a)
1. WhatStepsconditions
to take priormust to closure:prevail and what For the implementation
service, were declaredof redundant.
a redundancy program
This programto
requirements,
a) if any,Notice
Written must to anDOLE
employer 30 dayscomply priorwith
to be valid,in the
resulted employer ofmust
the reduction complycomplement
manpower with the
to justify/effect
the intended a valid
dateretrenchment
of termination, program?showing (2%).a following
and consequent REQUISITES: termination of fifteen (15)
bona fide reason for closure; (1)
employees,notice
written whichserved
includedon both the employees
the secretary of theandlocal
SUGGESTED
b) ANSWER;
Written Notice to employees 30 days the Department of Labor and Employment
union and the company's Pollution control Officer. at least
In the priorcaseto of the Asianintended
Alcohol Corp.date vs. of NLRC, G.R. one month prior to the intended date of
termination
No. (Catatista
131108, March v. NLRC, 25,1999,
GR. No. the 102422,
SupremeAug. Court 3 retrenchment;
stated that the requirements for a valid retrenchment (2)
1995). Ilawpayment
at Buklod of separation
ng Manggagawa pay equivalent
(IBM), to at least
questioned
must be proved by clear and convincing evidence: one month pay or
the termination of at
theleast one month pay
15 employees, for everythat
contending
SUGGESTED ANSWER: year
the sameof service whichever
constituted unionis higher;
busting and therefore,
(1) that Art.
2. NO, the retrenchment
283 of the Labor is reasonably
Code doesnecessary (3) good faith in abolishing
not obligate illegal, if the same is undertaken the redundant
without positions;
prior union
and likely to prevent business losses
an employer to pay separation benefits when the approval. which, if and
already
closure is incurred, are not merely
due to serious business delosses
minimis, financial (4)
or but 1. IsfairIBM
andcorrect
reasonable
in its criteria in ascertaining
contention what
that redundancy
SUBSTANTIAL,
reverses (North SERIOUS, Davao Mining ACTUAL andand REAL or if
Development positions are to be declared
can be implemented by HIVredundant
only uponand prior union
only
Corp.expected,
v. NLRC,are reasonably
G.R. No. 112546, imminent March as 13,1996), accordingly
approval? Why? abolished.
(3%)
perceived
except if the objectively
CBA provides and in good
otherwisefaith by the Foods SUGGESTED ANSWER:
(JAKA
employer;
v. Pacot, G.R. No. 151378, Mar. 28, 2005). The Labor Code (in Article 283) very clearly gives
(2) that the employer served WRITTEN NOTICE the employer the right to terminate any of its
both to the employees and to the Department of employees for redundancy.
Labor
Dismissal; and Employment
Authorizedat Causes;least one Downsizing
month prior to 2. Can the position of Pollution Control Officer be
the intended
Employees (2001) date of retrenchment; declared redundant? Why? (2%)
(3) that the employer pays the retrenched
Soon after the Asian meltdown began in October SUGGESTED ANSWER: employees
SEPARATION
1997, ABC Realty PAY equivalent
and Management to one month pay or
Corporation If there is a law requiring companies to have a
at least oneamonth
undertook pay for every
downsizing program yearand of service,
terminated Pollution Officer, then HIV cannot declare such
whichever
nearly a third is higher;
of its regular workforce. The affected office redundant.
(4) that the employer
employees questioned exercises its prerogative
their termination arguing to that
retrench
the action employees in GOODinFAITH
was precipitate that forABC the had not If there is no such law, then the Pollution Officer
advancement
proved that it of its interest
sustained any and not to Is
losses. defeat
the claimor of could be considered redundant.
circumvent
the employees the employees'
correct? Explain right your
to security
answer, of (3%). Panel: Consider case of Escareal. A
tenure; and
SUGGESTED ANSWER: position created by law cannot be
(5)
Thethat the of
claim employer used FAIRmay
the employees and or REASONABLE
may not be declared redundant.
CRITERIA
correct. When in ascertaining who would be
the Corporation dismissed its Dismissal; Authorized Causes; Redundancy
undertook
and who wouldprogram,
"downsizing" be retained among
it may havethe employees,
terminated its (2000)
such
employees as status on (i.e.,
eitherwhether
one ofthey twoare temporary,
grounds, namely, a) Can redundancy exist where the same is due to
casual,
redundancy regular or managerial employees), efficiency, the company's failure to properly forecast its
or retrenchment.
seniority, physical fitness, age, and financial hardship manpower requirements? (3%) b) Can redundancy
for
Forcertain workers.
REDUNDANCY, there is no requirement of exist where the work performed by twelve (12)
losses, whereas in retrenchment, substantial losses, workers can be performed as efficiently by ten (10)
actual or anticipated, is a requirement. (Article 283, workers by increasing the speed of a machine
(b)
LaborWhat conditions
Code). must prevail
In Atlantic Gulf and andPacific
what Company without detriment to the health and safety of the
requirements,
vs. NLRC, G.R. if any,No.must an employer
127516. May 28, comply1999, withthe workers? (3%)
to justify/effect
Supreme Courtaruled:valid redundancy program? (2%).
"... it is necessary to distinguish redundancy SUGGESTED ANSWER:
SUGGESTED
from retrenchment...ANSWER: Redundancy exists when a) Yes, REDUNDANCY exists when a position has
In the caseservicesof Asian
of anAlcohol
employee Corp.
are(supra),
in excess theof become an excess or superfluous which, in turn,
Supreme Court stated that
what is required by an enterprise. REDUNDANCY exists may be caused by reorganization, closure of
business loss occurs. The Supreme Court in Lopez
Sugar Corporation v, Federation of Free Workers,
189 SCRA 179 (1990). said:
In its ordinary connotation, the phrase "to
prevent losses" means that the
retrenchment or termination of some
employees is authorized to be undertaken
by the employer sometime before the
losses anticipated are actually sustained or
realized. It is not, in other words, the
intention of the lawmaker to compel the
employer to stay his hand and keep all his
employees until sometime after losses shall
have in fact materialized; if such an intent
were expressly written into law, the law
vulnerable to constitutional attack property from one man to (underscoring supplied]
may well be
asa
taking nother,
Dismissal; Authorized Causes; Retrenchment (2003)
I. Did SSS comply with the requirements of The policy of social justice is not intended to
procedural due process in the dismissal from countenance wrongdoing. Compassion for the poor
employment of JV? Explain briefly (2%) is an imperative of every human society but only
SUGGESTED ANSWER: when the recipient is not a rascal claiming an
In connection with the right to due process in the undeserve privilege. Those who invoke social justice
termination of an employee, the Labor Code (in may do so only if their hands are clean and their
Article 277[b]) requires that the employer furnish the motives blameless.
worker whose employment is sought to be
terminated a written notice containing a statement of A contrary rule would have the effect of rewarding
the causes for termination and shall afford ample rather than punishing the erring employee for his
opportunity to be heard and to defend himself with offense.
the assistance of his representative if he so desires. ALTERNATIVE ANSWER;
The award of the separation pay was not proper.
According to the Labor Code, SEPARATION PAY is
SSS did not comply with the above described to be paid to an employee whose employment is
requirements for due process. The memorandum terminated due to the installation of labor saving
order was for the preventive suspension of JV, not a devices, redundancy, retrenchment to prevent losses
notice for his termination and the causes of his or the closing or cessation of operation of the
termination. establishment or undertaking. When an employer
2. If you were the Labor Arbiter, how would you terminates the services of an employee who has
decide the case? Explain briefly (3%) been found to be suffering from any disease, the
SUGGESTED ANSWER: employee is also to be paid separation pay.
I will decide that the termination of JV was legal. It
was for just cause. JV's misappropriation of company
funds and various infractions detrimental to the But on the basis of equity, the Supreme Court has
business of the company duly proven by substantial ruled that an employee whose employment has been
evidence constitute a willful breach by JV of the trust terminated for just cause may nevertheless, for
reposed in him by his employer which is a just cause humanitarian reasons, be granted financial
for termination. (See Article 282) assistance in the form of separation pay. But also
according to the Supreme Court, a terminated
employee is not deserving of said financial
But I will award him indemnity of, say Pl,000, for the In view of theif foregoing,
assistance her termination
I will order
is reinstatement
due to serious
to
failure of the employer to give him due process. their former positions without loss of seniority rights
misconduct.
with full backwages, plus damages and attorney
Dismissal; Just Cause; Separation Pay In the case, Daisy was dismissed because of
fees.
(1996) serious misconduct. Thus, she should not be paid
1) Daisy, the branch manager of Tropical Footwear separation pay.
Dismissal; Just Cause; Requirements (1999)
Inc.. was dismissed for serious misconduct. She filed FACTS: Joseph Vitriolo (JV), a cashier of Seaside
a complaint for illegal dismissal and damages. The Dismissal; Just Causes
Sunshine Supermart (SSS),(2001)
was found after an
Labor Arbiter sustained Daisy's dismissal but "A" worked
audit, forcash
to have company "B" ason
shortages a his
rankmonetary
and file
awarded her separation pay based on social justice employee untilcovering
accountability April 1990 when A's
a period services
of about fivewere
and as an act of compassion considering her 10- terminated duetotal
months in the to loss of confidence
amount in A. SSS
of P48,000.00.
year service with the company. However,
served uponbefore
JV theeffecting
writtenA's dismissal,
charge B him via
against
accorded A due process
a memorandum including full
order of preventive opportunity
suspension,
to answer the charges against him in the course
of the investigation. Was B justified in dismissing
A after the investigation? Why? (5%)
SUGGESTED ANSWER:
In the case of PLDT vs. NLRC (G.R. No. 106947,
February 11, 1999), the Supreme Court ruled that
the basic requisite for dismissal on the ground of
loss of confidence is that the employee concerned
must be one holding a position of trust and
confidence.
In Alba Patio de Makati v. NLRC: A final and Dismissal; Liability; Corporate Officers
executory judgment can no longer be altered, even if (1997)
the modification is meant to correct what is Are the principal officers of a corporation liable in
perceived to be an erroneous conclusion of fact or their personal capacity for non-payment of unpaid
law, and regardless of whether the modification is wages and other monetary benefits due its
attempted to be made by the court rendering it or by employees?
the highest court of the land. Moreover, a final and SUGGESTED ANSWER:
executory judgment cannot be negotiated, As a general rule, the obligations incurred by the
hence, any act to subvert it is contemptuous. principal officers and employees of a corporation
are not theirs but the direct accountabilities of the
It was incumbent upon the counsel for the corporation they represent.
complainant to have seen to it that the interest of all
complainants was protected. The quitclaim and the However, SOLIDARY LIABILITIES may at times be
release in the preparation of which he assisted incurred but only when exceptional circumstances
clearly worked to the grave disadvantage of the warrant such as, generally, in the following cases:
complainants. To render the decision of this Court when directors and trustees or, in appropriate cases,
meaningless by paying the back-wages of the the officers of a corporation:
affected employees in a much lesser amount clearly (1) vote for or assent to patently unlawful acts of the
manifested a willful disrespect of the authority of this corporation;
Court as the final arbiter of cases brought to it. (2) act in bad faith or with gross negligence in
directing the corporate affairs;
(3) are guilty of conflict of Interest to the prejudice of
A final and executory judgment cannot be the corporation, its stockholders or members, and
compromised under a "Release and Quitclaim" if other persons.
said "Release and Quitclaim is clearly to the grave
disadvantage of the affected employees by paying
them much lesser amounts than what they were
entitled to receive under the judgment. (See Alba
Patio de Makati vs. NLRC, 201 SCRA 355).
ALTERNATIVE ANSWER: The mere fact that the complaint did not pray for
Yes. Under Art. 223 of the Labor Code, an employer reinstatement will not prejudice the employee,
has two options in order for him to comply with an because technicalities of law and procedure are
order of reinstatement, which is immediately frowned upon in labor proceedings. (General Baptist
executory, even pending appeal. Bible College vs. NLRC. 219 SCRA 549).
FIRSTLY, he can admit the dismissed employee
back to work under the same terms and conditions Dismissal; Reinstatement (1995)
prevailing prior to his dismissal or separation or to In labor
Give at least
cases,
five the
(5) instances
Supreme when Court anhasillegally
held
a substantially equivalent position if the former dismissed employeeand
corporate directors mayofficers
not be reinstated.
solidarity liable with
position is already filled up. SECONDLY, the SUGGESTED
the corporationANSWER:
for the termination of employment of
employer can be reinstated in the payroll. Failing Five [5] instances
employees when or
done with malice anbad illegally dismissed
faith. (Sunio
to exercise any of the above options, the employer v. NLRC. 127
employee may SCRA
not be 390;
reinstated:
General Bank and Trust
can be compelled under PAIN OF CONTEMPT, to Co. v. Court of Appeals, 135 SCRA 659).
pay instead the salary of the employee effective (1) When
ALTERNATIVE the position held by the illegally
ANSWER:
from the date the employer failed to reinstate dismissed
No. Unlessemployee
they are has been
guilty abolished
of malice andfaith
or bad thereinis
despite an executory writ of execution served no substantially
connection with equivalent positionof
the non-payment forunpaid
said wages
upon him. Under Art. 218 of the Labor Code, the (2)
employee;
andWhen
other the employer
monetary has ceased
benefits to operate;
due to employees.
NLRC has the power to cite persons for direct and (3) When the employee no longer wishes to be
indirect contempt. reinstated;
Dismissal; Payroll Reinstatement (2005)
(4)
(c) When
What strained
is meantrelations between
by "payroll the employer
reinstatement" and
and
whenthe employee
does it apply?have
(4%)developed and
ANOTHER ALTERNATIVE ANSWER: SUGGESTED ANSWER:
(5) When the employer has lost his trust and
confidence in the employee who is holding a position
of trust and confidence.
The tenure of a project employee is co-terminous with Prescriptive period; illegal dismissal (1994)
the project in connection with which his services were On October 30, 1980, A, an employee, was served
engaged. Thus, after the end of the project, the notice of dismissal allegedly for gross dishonesty.
employer-employee relationship ceases to exist. Such Forthwith, the Union to which A was a member
project employee has no legal right to insist that he raised A's dismissal with the grievance machinery as
should be employed by the Construction Group for a provided for in its Collective Bargaining Agreement
subsequent project of said Group. (CBA). At that point, negotiations for a new CBA was
in progress. Hence, both the Union and the Company
had very little time to address A's grievance. In fact,
Employee; Regular vs. Project Employees said grievance, as it were, slept the sleep of the
(2002) dead, being resolved only with finality on November
Design Consultants, Inc. was engaged by the PNCC 23, 1983 when the General Manager of the Company
to supervise the construction of the South affirmed A's dismissal on the fifth and the last step of
Expressway Extension. Design Consultants, Inc. the grievance machinery.
hired Omar as a driver for two (2) years. After his
two-year contract expired, he was extended another
contract for nine (9) months. These contracts were A filed an action for illegal dismissal with the
entered into during the various stages and before the Arbitration Branch of the NLRC on November 25,
completion of the extension project. Omar claims that 1983. The Company immediately filed a Motion to
because of these repeated contracts, he is now a Dismiss on the ground of prescription, invoking
regular employee of Design Consultants. Inc. Is he Article 290 of the Labor Code.
correct? Explain briefly. (5%)
If you were the Labor Arbiter, how would you resolve distinct from a criminal action. Each may proceed
the Company's Motion to Dismiss? independently of each other.
SUGGESTED ANSWER:
As the Labor Arbiter, I will deny the Motion to The right to file an action for illegal dismissal is not
Dismiss. Where an employee was dismissed and the dependent upon the outcome of the criminal case.
matter of his dismissal was then referred to the Guilt or innocence in the criminal case is not
grievance machinery pursuant to the provision in the determinative of the existence of a just or authorized
existing collective bargaining agreement, and the cause for a dismissal. [Pepsi-Cola Bottling Co. v.
grievance machinery had a final meeting after quite a Guanzon 172 SCRA 571(1989)}
long while thereafter, the complaint for Illegal
dismissal was then filed, the action was not barred SUGGESTED ANSWER:
by laches, as the pendency of the matter before the B. I agree with the statement. A case of illegal
grievance machinery affected the ripeness of the dismissal filed by an employee who has been
cause of action for illegal dismissal. (Radio terminated without a just or authorized cause is not a
Communications of the Philippines, Inc. (RCPI), vs. money claim covered by Art. 291 of the Labor Code.
National Labor Relations Commission, et al G.R No. An employee who is unjustly dismissed from work is
102958, 25 June 1993, J. Davide, Jr. 223 SCRA 656. entitled to reinstatement and to his backwages. A
case of illegal dismissal is based upon an injury to
ALTERNATIVE ANSWER: the right to security of tenure of an employee. Thus,
If I were the Labor Arbiter, I will deny the motion to in accordance with Art 1146, it must be instituted
dismiss because the action for Illegal dismissal has within four years. [Callanta v. Carnation Phil. 145
not yet prescribed. The prescriptive period for an SCRA 268(1986); Baliwag Transit v. Ople 171 SCRA
action for illegal dismissal is four {4} years. (Callanta 250(1989); International Harvester Macleod, Inc. v.
vs. Carnation ,145 SCRA 268) NLRC, 200 SCRA 817(1991)]
The fifty (50) persons (engineers, architects and This is advantageous to the SSS and GSIS
construction workers) were hired by Falcon Factory members for purposes of death, disability or
to renovate its building. The work to be performed retirement benefits. In the event the employees
by these fifty (60) people is not in connection with transfer from the private sector to the public sector,
the purpose of the business of the factory. Hence, or vice-versa, their creditable employment services
the employ of these fifty (50) persons is purely and contributions are carried over and transferred as
casual. They are, therefore, excepted from the well.
compulsory coverage of the SSS law.
ANOTHER SUGGESTED ANSWER: SSS; GSIS; Jurisdiction; Benefit Claims
I agree with the contention that the employees hired (1995)
by the owners of FALCON factory as construction Is it necessary for an employee to litigate in order to
workers in the renovation of its building should be establish and enforce his right to compensation?
under the compulsory coverage of the Social Explain.
Security Law. SUGGESTED ANSWER:
No. All that an employee does to claim employee's
It is true that in connection with FALCON Factory, compensation is to file a claim for said benefits with
which is engaged in the assembling of automotive the SSS (for those in the private sector) or GSIS (for
components, the construction workers may be those in the public sector).
considered casual employees because their
employment is not for the purpose of occupation of In the event that the claim is denied on the
business of FALCON Factory. As such, in SSS/GSIS level, claimant may appeal to the
accordance with Section 8{j) of the Social Security Employees Compensation Commission where he
Law, they are excepted form the compulsory may prove the causal connection between injury and
coverage of the Social Security System. nature of work.
But they could also be considered project employees SSS; Prescriptive Period; Benefit Claims
of FALCON Factory and as such could be under the (2001)
compulsory coverage of the SSS, applying Art 4 of (b) In 1960, Juan hired Pablo to drive for the former's
the Labor Code that provides that all doubts in the lumber company. In 1970, Pablo got sick and was
Implementation and interpretation of the provisions of temporarily laid-off. In 1972, Pablo recovered and
Labor Law shall be resolved in favor of labor. The resumed working for the same lumber company, now
employees here therefore, should be considered as run by Juan's wife since Juan had already passed
under the compulsory coverage of the SSS. away. In 1996, Pablo retired. When Pablo applied for
retirement benefits with the SSS that same year, he
discovered that the lumber company never enrolled
SSS; GSIS; Beneficiality; Portability him as an employee, much less remitted his
Provisions of RA 7699 (2005) contributions that were deducted from his salary. The
How are the "portability" provisions of Republic Act lumber company agreed to pay for Pablo's
No. 7699 beneficial or advantageous to SSS and contributions plus penalties but maintained that most
GSIS members in terms of their creditable of Pablo's claims had already prescribed under Art,
employment services in the private sector or the 1150 of the Civil Code. (Art. 1150 provides "The time
government, as the case may be, for purposes of for prescription of all kinds of actions, when there is
death, disability or retirement? Please explain your no special provision which ordains otherwise, shall
answer briefly. (3%) be counted from the day they may be brought."). Is
SUGGESTED ANSWER: the Lumber company's contention correct? Why?
Portability provisions of R.A. No. 7699 shall benefit a (3%),
covered worker who transfers employment from one
sector to another or is employed in both SUGGESTED ANSWER:
The lumber company's contention is not correct. The
Social Security Law (in Sec. 22(b) provides that the
right to institute the necessary action against an
employer may be commenced within twenty (20)
years from the time the delinquency is known or the
assessment is made by the SSS, or from the time
the benefit accrues, as the case may be.