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LABOR LAW II – Atty.

Charisma Nolasco

SECURITY OF TENURE 4. Probationary


 A regular employee is entitled to security of tenure  Under the Labor Code, the probationary period shall
and may only be terminated based on either just or not exceed 6 months. Are probational employee-
authorized causes. regular employee? Yes, because their work is
necessary and desirable to the business. Take note
RELIEFS IN CASE OF ILLEGAL DISMISSAL {RFO} that the reasonable standards set shall also be made
1. Reinstatement without loss of seniority, rights and known to the
other privileges;  Instance that a probationary employee would
2. Full backwages; become a regular employee from day 1: when the
3. Other benefits or their equivalent monetary benefits. probationary period was not communicated and/or
criteria for evaluation was not made known to the
REINSTATEMENT employee at the time of the engagement.
 Immediately executory. Employer has to either RE-  Probationary employment will not refer to the period
ADMIT them under the same terms and conditions but rather the purpose for hiring the employee.
prevailing prior to their dismissal, or to REINSTATE Probationary employees are actually regular
THEM IN THE PAYROLL employees, only that the employer would want to be
assured that his employee would be performing at
BACKWAGES par with his reasonable standards. The employer
 From the time compensation is withheld up to actual wants to test first if he is fir for the job. Probationary
reinstatement. employee may be terminated.
 Backwages should not be diminished or reduced by 5. Casual
the earnings derived by him elsewhere during the  Neither regular nor seasonal employees. They do not
period of his illegal dismissal. perform work or services necessary or desirable to
the trade/business of the employer.
WHAT ARE THE DIFFERENT CLASSIFICATIONS OF
EMPLOYEES {CaReSPro2} Note:
1. Regular Employees An employee can be considered as regular in the following
 Those employees who perform work that is usually instances:
necessary and desirable to the business of the 1. Those employees who perform work that is usually
employer. necessary and desirable to the business of the employer.
2. Project 2. Project employees whose duration or scope was not
 The employment is fixed for a specific period or made known to him at the time of his hiring. Thus,
undertaking; the fixed period should be determined making him a regular employee from the very day he
at the time of the employees’ engagement; started working.
 Instance that a project employee would become a 3. Probationary employee who would be allowed to work
regular employee from day 1: if the specific period or beyond the probationary period and those whose
undertaking was not communicated to them. performance standards were not made known to them at
3. Seasonal the time of his/her engagement. Thus, the employee will
 The work or service to be performed is seasonal in then be considered a regular employee from the first day
nature he started working.

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LABOR LAW II – Atty. Charisma Nolasco

4. A casual employee who is hired for more than one year. 4. Rendering the employee unfit to continue working
for the employer
TERMINATION BY EMPLOYEE {SICO} 2. Willful Disobedience/Insubordination
1. Serious Misconduct;  This should pertain to an unlawful and intentional
2. Insult or Unbearable Treatment; attitude; wrongful and perverse. There must also be
3. Commission of a Crime; a lawful order coming from the management, which
4. Other analogous causes. should have been made known to the employee.
Requisites:
Notes: 1. Disobedience or insubordination;
 If there is a cause in terminating, the 30 day notice is 2. Wilful or intentional characterised by a
not required. wrongful and perverse attitude;
 If there is no valid cause for the employee to sever 3. Order violated must be reasonable, lawful and
the employer-employee relationship, that is a case of made known to the employee;
resignation. 4. Pertain to duties which he has been engaged to
 A resignation must be accepted by the employer. discharge;
Such that, if the resignation is later on accepted by
the employer, the employee cannot unilaterally 3. Gross and Habitual Neglect of Duty
withdraw his resignation.  Negligence has to be grave and habitual
 Gross negligence refers to want of care in the
TERMINATION BY EMPLOYER performance of one’s work or duty.
1. The grounds should either be just cause or authorized  Habituality refers to repeated failure to perform one’s
causes; duty for a period of time.
2. There must be (a) Substantive Due Process and (b)  One should take note all the infractions committed
Procedural Due Process by the employee during the period of his
employment. The offenses committed by him should
JUST CAUSES {Serious-Willful-GFCO} not be taken single and separately.
1. Serious Misconduct Requisites:
 Transgression should be serious and grave; it should 1. Neglect of duty;
pertain to improper or wrongful conduct that 2. Gross and habitual in character
transgresses some established rules.
 This should not pertain to mere error in judgment. 4. Fraud and Willful Breach of Trust
 Misconduct must have reasonable relation to the Requisites:
work performed by the employee. It must show that 1. Act, omission or concealment;
the employee has become unfit to continue being an 2. Involving a breach of legal duty, trust or confidence
employee of the employer. justly reposed;
3. Committed against the employer or his/her
REQUISITES representative;
1. Misconduct 4. In connection with the employees work
2. Grave and aggravated in character
3. Relating to the performance of employee’s duties  This is also known as Loss of Trust and Confidence.

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LABOR LAW II – Atty. Charisma Nolasco

 Requisites:  Retrenchment is a last resort. There should be other


a) Loss of trust and confidence should not be remedies that were resorted to first by the employer
simulated before resorting to retrenchment such as, cost-saving
b) It should not be used as a subterfuge on the devices, compression of work schedule to save up
part of the employer; electricity, etc. The employer should prove that these
c) It may not be arbitrarily asserted by the were implemented first to save the financial
employer; condition of the company.
d) It must be genuine and not a mere  Requirements:
afterthought.
 This covers cases involving employees occupying 1. Reasonably necessary and likely to prevent
positions of trust and confidence: business losses;
a) Managerial Employees;
b) Confidential Employees – employees holding 2. Losses (if incurred) should not be de minimis but
company funds/property. substantial, serious, actual, and real; if expected,
should be reasonably imminent;
5. Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized 3. Proven by sufficient and convincing evidence;
representative; and
4. Retrenchment must be in good faith, for the
6. Other Analogous Causes advancement of employer’s interest and not to
 The commission of a crime against the employer is a defeat or circumvent the employee’s right to security
valid cause of dismissal. of tenure;
 Abandonment is one example but for it to avail:
a) There must be failure to report to work without 5. Fair and reasonable criteria in ascertaining who
reasonable/justifiable ground on the part of the would be dismissed
employee;
b) There must be a clear intention to sever the 2. Serious business losses/Closure/Cessation
employer-employee relationship.  Not every loss incurred will mean that the employer
is experiencing serious business losses; the losses
AUTHORIZED CAUSES {InReReCD} should be substantial.
1. Retrenchment  The 30-day notice to the DOLE is important so that it
 Termination by the employer through no fault of the can ascertain the veracity of the claim of serious
employee is resorted to because of the following business losses.
instances:  The 30-day notice to the employees is important so
1) Industrial depression; they can look for another job.
2) Seasonal fluctuation, etc.
BUT these instances should be indicative of 3. Redundancy
the losses incurred by the employer that would make the
employer decide to retrench the employees.

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LABOR LAW II – Atty. Charisma Nolasco

It does not pertain to redundant positions but


 2. In good faith;
pertains to the business demands of the company
operation. 3. Valid purpose (save on cost, enhance efficiency and
REQUISITES: other justifiable economic reasons)

1. Superfluous positions or services of employees; 4. No other option available than the introduction of
machinery or equipment and the consequent
2. In excess of what is reasonably demanded by the termination of the employee
actual requirements of the enterprise to operate
economically and efficiently; 5. Fair and reasonable criteria in selecting the employee

3. Good faith in abolishing redundant positions;


PROCEDURAL DUE PROCESS
4. Fair and reasonable criteria in selecting the Twin-notice Requirement
employee a. First notice/Show-Cause Notice {PIPA}
 this should contain:
5. Adequate proof of redundancy (i.e. new staffing 1) the infraction committed by the employee;
pattern, feasibility 2) existing policy violated by the employee or a
provision in the LC;
studies/proposals, viability of the new created 3) penalty imposed to the errant employee;
positions, job description, approval by the 4) ample opportunity to be heard.
management of the restructuring) b. Notice of Termination: {RPP}
 the employee should be apprised of
1) the results of the investigation;
4. Disease 2) policy violated;
 The labor code provides that the employee 3) the penalty to be imposed. Remember that
contracted a disease and that his continue dismissal is not the only penalty
employment would be prejudicial not only to himself,
but his co-workers. RETIREMENT
 Separation pay must be awarded to the dismissed  60 (optional), 65 (compulsory), 5 years of service. If
employee. there is an existing CBA providing for retirement, as
 the omnibus rules provide that there must be a between the CBA and the provisions of the LC, the
certification coming from a competent public health CBA should be followed. If the CBA provides for a
authority that the illness of the employee cannot be lower age of retirement, let’s say 50 years old is the
treated for a period of 6 months compulsory retirement age under the CBA, can an
employee who reached 50 years later on complain
5. Installation of labor saving device that he/she has been illegally dismissed? NO. The
parties have validly agreed on the age of retirement.
1. Introduction of machine, equipment or other devices; But if the CBA provides for lesser benefits than those

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LABOR LAW II – Atty. Charisma Nolasco

provided in the statutes, LC, you have to follow those Commingling/Mixture


statutorily prescribed. EFFECT: Employees outside of the bargaining unit are
 Take note of the retirement package: half month deemed excluded (Art. 256, LC)
salary (15 days + 1/12 of the 13th month pay +
cash equivalent of 5 days SIL). Bargaining Unit

 A group of employees sharing mutual interests


within a given employer unit, comprised of all or
less than all of the entire body of employees in
Right to Self-Organization the employer unit or any specific occupational or
geographical grouping within such employer unit.
SCOPE : All persons employed in commercial and
agricultural enterprises ... religious, charitable or RIGHTS and CONDITIONS (Art. 247, LC)
educational institutions, whether operating for profit or not
EXTENT: Form, Join or Assist labor organizations (1) Elect union officers, including those of the
national union/federation
PURPOSE: Period: every 5 years
(1) Collective bargaining Qualifications to run for elective or appointive
(2) Mutual aid and protection - Ambulant, intermittent positions: (a) Member in good standing
and itinerant workers, self-employed, rural workers and (b) Not a member of a subversive organization
those without definite employers (c) Not directly or indirectly engaged in subversive activities
(d) Not convicted of a crime in involving moral turpitude
GOVERNMENT EMPLOYEES, may only have the right to
form associations for purposes not contrary to law Basis to determine eligible voters

No right to self-organization 1. Applicable payroll period and employee’s


1. Managers(Art.255,LC) status
2. Confidential Employees (Confidential employee rule /
Doctrine of Necessary Implication) 2. Payroll of the month next preceding the labor
dispute in case of regular employees
Labor Code, as follows provides that: {DEAF}
Confidential employees are defined as those who Grounds for Impeachment/Expulsion
(1) assist or act in a confidential capacity,
(2) to persons who formulate, determine, and
effectuate management policies in the field of labor  Irregularities in the approval of resolutions
relations. concerning compensation of officers other than
salaries and expenses due to their positions (Art.
247[k], LC)

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LABOR LAW II – Atty. Charisma Nolasco

 Any violation of the rights and conditions of Bargaining Agent


membership (Art. 247, LC) Legitimate labor union duly recognized or certified as the
sole and exclusive bargaining representative or agent of
 Failure to submit reportorial requirements (Art. 248- all employees in a bargaining unit
A, LC)
When do labor unions acquire legal personality?
 Misuse of illegal disbursement of labor education and A. Independent Union / Federation / National Union /
research fund (Omnibus Rules) Trade Union
Upon issuance of certificate of registration (2003 Bar)
EFFECT: Entitled to exercise rights and privileges of a
legitimate labor union

• When do labor unions acquire legal personality?


B. Local/Chartered Union
Reportorial requirement
1. Upon issuance of charter certificate
1. List of newly-elected officers/appointive PURPOSE: Filing of a petition for certification election
officers within 30 calendar days after election or 2. Upon submission of
change in the list of officers (Art. 247[c]), minutes (a) names of officers, address of principal office and
of election and list of voters (Art. 248-A) (b) Constitution and by-laws
PURPOSE: To exercise rights and privileges of a legitimate
2. Rendering of account by the treasurer or labor union
responsible officer:
(a) at least once a year within 30 days after Cancellation of Union Registration
close of fiscal year;
(b) such other times as may be required by a GROUNDS (ART. 244-A, LC)
resolution of majority of the members; 1. Misrepresentation, fraud, false statement
(c) upon vacating the office
• Constitution and by-laws
3. Constitution, by-laws, amendments, minutes of
ratification, list of members who took part in
the ratification within 30 days from adoption or (2) Voluntary dissolution
ratification or amendment (Art. 248-A) 2/3 of general membership voting in a meeting called for
the purpose
4. List of members atleast once a year or
whenever required(Art.238-A) Determination of Representation Status

1. SEBA Certification

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LABOR LAW II – Atty. Charisma Nolasco

2. Certification Election 2. May confidential employees who assist managerial


employees, and who act in a confidential capacity or have
3. Consent Election access to confidential matters being handled by persons
exercising managerial functions in the field of labor relations
4. Run-off Election form, or assist, or join labor unions? Explain your answer.
(2.5°/o)
5. Re-run Election No. In Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery
v. Asia Brewery, Inc., G.R. No. 162025, August 3, 2010, the
High Court explained, who are those confidential employees
covered by the prohibition to join, form and assist any labor
organization under Article 245 [now 255] of the Labor Code,
as follows:
Confidential employees are defined as those who (1) assist
or act in a confidential capacity, (2) to persons who
formulate, determine, and effectuate management policies
in the field of labor relations. The two (2) criteria are
cumulative, and both must be met if an employee is to be
considered a confidential employee that is, the confidential
relationship must exist between the employee and his
Questions: supervisor, and the supervisor must handle the prescribed
responsibilities relating to labor relations. The exclusion from
1. Give the characteristics of each category of employees, bargaining units of employees who, in the normal course of
and state whether the employees in each category may their duties, become aware of management policies relating
organize and form unions. Explain your answer. (5°/o) to labor relations is a principal objective sought to be
accomplished by the confidential employee rule.
Under Article 255 [245] of the Labor Code the following are
provided:
Managerial employees are not eligible to join, assist or 3. What are the grounds for validly terminating the services
form any labor organization. of an employee based on a just cause? 5%
Supervisory employees shall not be eligible for
membership in the collective bargaining unit of the rank- An employer may terminate an employment for any of the
and-file employees but may join, assist or form separate following causes:
collective bargaining units and/or legitimate labor (a) Serious misconduct or willful disobedience by the
organizations of their own. employee of the lawful orders of his employer or
The rank-and-file union and the supervisors’ union representative in connection with his work;
operating within the same establishment may join the same (b) Gross and habitual neglect by the employee of his
federation or national union. duties;
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized

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LABOR LAW II – Atty. Charisma Nolasco

representative; “Ample opportunity to be heard” means any meaningful


(d) Commission of a crime or offense by the employee opportunity (verbal or written) given to the employee to answer
against the person of his employer or any immediate the charges against him/her and submit evidence in support of
member of his family or his duly authorized representatives; his/her defense, whether in a hearing, conference or some other
and fair, just and reasonable way. A formal hearing or conference
(e) Other causes analogous to the foregoing. (Art. 297 [282], becomes mandatory only when requested by the employee in
Labor Code) writing or substantial evidentiary disputes exist or a company rule
or practice requires it, or when similar circumstances justify it.
(Perez v. PT&T, G.R. No. 152048, April 7, 2009, Section 12,
4. Give the procedure to be observed for validly terminating DOLE Department Order 18-A)
the services of an employee based on a just cause? 5%
(c) After determining that termination of employment is justified,
the employer shall serve the employee a written notice of
As defined in Article 297 of the Labor Code, as amended, the
termination indicating that: (1) all circumstances involving the
requirement of two written notices served on the employee shall
charge against the employee have been considered; and (2) the
observe the following:
grounds have been established to justify the severance of their
(a) The first written notice should contain: employment.
1. The specific causes or grounds for termination as provided for The foregoing notices shall be served personally to the employee
under Article 297 of the Labor Code, as amended, and company or to the employee’s last known address. (Section 5, 5.1, Rule I-
policies, if any; A, D.O. No. 147-15, Series of 2015)
2. Detailed narration of the facts and circumstances that will serve 5. The modes of determining the exclusive bargaining agent
as basis for the charge against the employee. A general of the employees in a business are: (a) voluntary
description of the charge will not suffice; and recognition; (b) certification election; and (c) consent
election. Explain how they differ from one another. 5%
3. A directive that the employee is given opportunity to submit a
written explanation within a reasonable period.
Voluntary Recognition refers to the process by which a legitimate
“Reasonable period” should be construed as a period of at least
labor union is recognized by the employer as the exclusive
five (5) calendar days from receipt of the notice to give the
bargaining representative or agent in a bargaining unit, reported
employee an opportunity to study the accusation, consult or be
with the Regional Office in accordance with Rule VII, Section 2 of
represented by a lawyer or union officer, gather data and
these Rules. Certification Election” or Consent Election refers to
evidence, and decide on the defenses against the complaint.
the process of determining through secret ballot the sole and
(Unilever v. Rivera, G.R. No. 201701, June 3, 2013; Section 12,
exclusive representative of the employees in an appropriate
DOLE Department Order 18-A)
bargaining unit for purposes of collective bargaining or
(b) After serving the first notice, the employer should afford the negotiation. A certification election is ordered by the Department,
employee ample opportunity to be heard and to defend while a consent election is voluntarily agreed upon by the parties,
himself/herself with the assistance of his/her representative if with or without the intervention by the Department. (Rule I,
he/she so desires, as provided in Article 299 (b) of the Labor Section 1, Book V, Rules to Implement the Labor Code)
Code, as amended.

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LABOR LAW II – Atty. Charisma Nolasco

premises to prevent him from influencing his co-workers to


6. State the jurisdiction of the Voluntary Arbitrator, or move against the interest of the company; hence, it directed
Panel of Voluntary Arbitrators in labor disputes? (4°/o) his payroll reinstatement and paid his full backwages and
{ii2-VIEW-U} other benefits even as it appealed to the NLRC. A few
months later, the NLRC reversed the ruling of the Labor
The voluntary arbitrator or panel of voluntary arbitrators Arbiter and declared that Juanito's dismissal was valid. The
shall have exclusive and original jurisdiction to hear and reversal ultimately became final. May Mandarin Company
decide all unresolved grievances arising from: recover the backwages and other benefits paid to Juanito
1. The implementation or interpretation of the collective pursuant to the decision of the Labor Arbiter in view of the
bargaining agreements; (Article 274 [261], Labor Code, reversal by the NLRC? Rule, with reasons. (2.5%)
Section 4, Rule XIX, Book V, Omnibus Rules Implementing
the Labor Code) Mandarin Company cannot recover the backwages and
2. The interpretation or enforcement of company other benefits paid to Juanito pursuant to the decision of the
personnel policies which remain unresolved after exhaustion Labor Arbiter despite the reversal by the NLRC. The refund
of the grievance procedure; (Article 274 [261], Labor Code, doctrine has already been reversed in Garcia v. Philippine
Section 4, Rule XIX, Book V, Omnibus Rules Implementing Airlines, Inc., G. R. No. 164856, July 20, 2009, where the
the Labor Code) Supreme Court then stressed that as opposed to the
3. Wage distortion issues arising from the application of abovementioned Genuino v. National Labor Relations
any wage orders in organized establishments; (par. 4, Article Commission, G.R. Nos. 142732-33 & 142753-54, December
124, Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules 4, 2007, 539 SCRA 342 the social justice principles of labor
Implementing the Labor Code) law outweigh or render inapplicable the civil law doctrine of
4. The interpretation and implementation of the unjust enrichment.
productivity incentive programs under RA 6971.
5. Upon agreement of the parties, shall also hear and
decide all other labor disputes including unfair labor 8. Rosa was granted vacation leave by her employer to
practices and bargaining deadlocks. (Article 275. [262], spend three weeks in Africa with her family. Prior to her
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules departure, the General Manager of the company requested
Implementing the Labor Code) her to visit the plant of a client of the company in Zimbabwe
6. Violations of a Collective Bargaining Agreement, in order to derive best manufacturing practices useful to the
except those which are gross in character, shall no longer be company. She accepted the request because the errand
treated as unfair labor practice and shall be resolved as would be important to the company and Zimbabwe was
grievances under the Collective Bargaining Agreement; anyway in her itinerary. It appears that she contracted a
(Article 274. [261], Labor Code) serious disease during the trip. Upon her return, she filed a
claim for compensation, insisting that she had contracted
the disease while serving the interest of her employer.
7. Juanito initiated a case for illegal dismissal against Under the Labor Code, the sickness or death of an
Mandarin Company. The Labor Arbiter decided in his favor~ employee, to be compensable, must have resulted from an
and ordered his immediate reinstatement with full illness either definitely accepted as an occupational disease
backwages and without loss of seniority and other benefits. by the Employees' Compensation Commission, or caused by
Mandarin Company did not like to allow him back in its employment subject to proof that the risk of contracting the

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LABOR LAW II – Atty. Charisma Nolasco

same is increased by working conditions. Is the serious and members may be terminated from employment
disease Rosa contracted during her trip to Africa because of the illegal strike. Explain your answer. (4%)
compensable? Explain your answer. 2.5%
SUGGESTED ANSWER:
In Government Service Insurance System vs. Besitan, G.R. The following are the effects of participation in an illegal
No. 178901, November 23, 2011, explained the concept of strike and commission of illegal acts during strike:
increased theory as follows: 1. Any union officer who knowingly participates in an illegal
Corollarily, for the sickness or resulting disability or death to strike; and
be compensable, the claimant must prove either (1) that the 2. Any worker or union officer who knowingly participates in
employee’s sickness was the result of an occupational the commission of illegal acts during a strike may be
disease listed under Annex “A” of the Amended Rules on declared to have lost his employment status; (Third
Employees’ Compensation, or (2) that the risk of contracting paragraph, Article 279 (a) [264 (a)], Labor Code)
the disease was increased by his working conditions.
Certainty is not required only probability B. A sympathetic strike is stoppage of work to make
Under the increased risk theory, there must be a reasonable common cause with other strikers in another establishment
proof that the employee’s working condition increased his or business. Is the sympathetic strike valid? Explain your
risk of contracting the disease, or that there is a connection answer. (1°k)
between his work and the cause of the disease. (Castor-
Garupa v. Employees’ Compensation Commission, G.R. No. The illegal stoppage of work by way of sympathetic strike
158268, April 12, 2006, 487 SCRA 171, 180) Only a has been settled in the case of Biflex Phils. Labor Union
reasonable proof of work-connection, not direct causal (NAFLU) v. Filflex Industrial and Manufacturing Cororation,
relation, however, is required to establish compensability of G.R. No. 155679, 19 December 2006, where it was ruled
a non-occupational disease. (Government Service Insurance that stoppage of work due to welga ng bayan is in the
System v. Cordero, G.R. Nos. 171378 & 171388, March 17, nature of a general strike, an extended sympathy strike. It
2009, 581 SCRA 633, 640) Probability, and not certainty, is affects numerous employers including those who do not
the yardstick in compensation proceedings; thus, any doubt have a dispute with their employees regarding their terms
should be interpreted in favor of the employees for whom and conditions of employment.Employees who have no
social legislations, like PD No. 626, were enacted. labor dispute with their employer but who, on a day they are
(Government Service Insurance System v. Corrales, G.R. No. scheduled to work, refuse to work and instead join a welga
166261, June 27, 2008, 556 SCRA 230, 243-244) ng bayan commit an illegal work stoppage. Even if
Applying the above ruling, Rosa must present a reasonable petitioners joining the welga ng bayan were considered
proof that her working condition increased his risk of merely as an exercise of their freedom of expression,
contracting the disease, or that there is a connection freedom of assembly or freedom to petition the government
between his work and the cause of the disease otherwise for redress of grievances, the exercise of such rights is not
the same is not compensable. absolute. For the protection of other significant state
interests such as the right of enterprises to reasonable
returns on investments, and to expansion and growth
9. A. Given that the liability for an illegal strike is individual, enshrined in the 1987 Constitution must also be considered,
not collective, state when the participating union officers otherwise, oppression or self-destruction of capital in order
to promote the interests of labor would be sanctioned. And it

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LABOR LAW II – Atty. Charisma Nolasco

would give imprimatur to workers joining assume jurisdiction? (2.5°k) (b) What are the consequences
demonstrations/rallies even before affording the employer of the assumption of jurisdiction by the Secretary of Labor,
an opportunity to make the necessary arrangements to and of the disobedience to the return to work? Explain your
counteract the implications of the work stoppage on the answer. (2.5%)
business, and ignore the novel principle of shared
responsibility between workers and employers aimed at Pursuant to Article 263 (g) [now 278 (g)], when a labor
fostering industrial peace. There being no showing that dispute causes or is likely to cause a strike or lockout in an
petitioners notified respondents of their intention, or that industry indispensable to the national interest, the Secretary
they were allowed by respondents, to join the welga ng of Labor and Employment may assume jurisdiction over the
bayan on October 24, 1990, their work stoppage is beyond dispute and decide it or certify the same to the National
legal protection. Labor Relations Commission (NLRC) for compulsory
arbitration. (Section 1, Operational Guidelines of
Department Order No. 40-G-03, Series of 2010, dated
10. Due to business recession, Ballistic Company retrenched February 24, 2011)
a part of its workforce. Opposing the retrenchment, some of For a valid exercise of the assumption of jurisdiction
the affected employees staged a strike. Eventually, the authority, any of the following conditions must be present:
retrenchment was found to be justified, and the strike was a. Both parties have requested the Secretary of Labor and
declared illegal; hence, the leaders of the strike, including Employment to assume jurisdiction over the labor dispute;
the retrenched employees, were declared to have lost their or
employment status. Are the striking retrenched employees b. After a conference called by the Office of the Secretary of
still entitled to separation pay under Sec. 298 (283) of the Labor and Employment on the propriety of the issuance of
Labor Code despite the illegality of their strike? Explain your the Assumption or Certification Order, motu proprio or upon
answer. (2%) a request or petition by either party to the labor dispute. In
the said conference. the parties shall also be encouraged to
The strikers including the union officers should be paid their amicably settle the dispute. (Section 2, Operational
separation pay by virtue of retrenchment notwithstanding Guidelines of Department Order No. 40-G-03, Series of 2010,
the illegal strike was declared illegal. The issue on dated February 24, 2011)
entitlement to separation pay due to authorized cause and
the ground for termination due to knowingly participating in B. What are the consequences of the assumption of
illegal strike are distinct and different. jurisdiction by the Secretary of Labor, and of the
disobedience to the return to work? Explain your answer.
(2.5%)
11. The consequences of assumption of jurisdiction are as
A. Pursuant to his power under Sec. 278(g) (263(g)) of the follows:
Labor Code, the Secretary of Labor assumed jurisdiction a. If a strike or lockout has not taken place, the parties are
over the 3-day old strike in Armor Steel Plates, Inc., one of enjoined to conduct any untoward action that may lead to a
the country's bigger manufacturers of steel plates, and strike or lockout.
ordered all the striking employees to return to work. The b. if a strike or lockout has already taken place, all striking
striking employees ignored the order to return to work. (a) and locked out workers shall, within twenty-four (24) hours
What conditions may justify the Secretary of Labor to from receipt of an Assumption or Certification Order,

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LABOR LAW II – Atty. Charisma Nolasco

immediately return to work and the employer shall Workers v. Inciong, G.R. No. 49983, 20 April 1982, 208 SCRA
immediately resume operations and readmit all workers 157, 165)
under the same terms and conditions prevailing before the
strike.
c. At any point in time, the parties are not prevented from 12. Marciano was hired as Chief Engineer on board the
submitting the dispute to Voluntary Arbitration with the vessel MN Australia. His contract of employment was for
Secretary of Labor and Employment or his/her duly nine months. After nine months, he was re-hired. He was
authorized representative as Voluntary Arbitrator or Panel of hired a third time after another nine months. He now claims
Voluntary Arbitrators. (Section 3, Operational Guidelines of entitlement to the benefits of a regular employee based on
Department Order No. 40-G-03, Series of 2010, dated his having performed tasks usually necessary and desirable
February 24, 2011) to the employer's business for a continuous period of more
While the consequence of disobedience to the return to work than one year. Is Marciano's claim tenable? Explain your
has been ruled in the case of Manila Hotel Employees answer. (3%)
Association v. Manila Hotel Corporation, G.R. No. 154591,
March 5, 2007. In holding that defiance of the assumption 13. Lazaro, an engineer, organized a union in Garantisado
order or a return-to work order by a striking employee, Construction Corporation (Garantisado) which has 200
whether a union officer or a member, is an illegal act and, employees. He immediately filed a Petition for Certification
therefore, a valid ground for loss of employment status. The Election, attaching thereto the signatures of 70 employees.
High Court explained: Garantisado vehemently opposed the petition, alleging that
The law explicitly prohibits such acts. 25 signatories are probationary employees, while 5 are
ART. 263. STRIKES, PICKETING, AND LOCKOUTS supervisors. It submitted the contracts of the 25
x x x x (omitted) probationary employees and the job description of the
ART. 264. PROHIBITED ACTIVITIES supervisors. It argued that if 30 is deducted from 70, it gives
(a) x x x x a balance of 40 valid signatures which is way below the
(omitted) minimum number of 50 signatories needed to meet the
alleged 25% requirement. If you are the Director of Labor
More to the point, the Court has consistently ruled in a long Relations, will you approve the holding of a Certification
line of cases spanning several decades that once the SOLE Election. Explain your answer. (5%)
assumes jurisdiction over a labor dispute, such jurisdiction
should not be interfered with by the application of the 14. Dion is an Accounting Supervisor in a trading company.
coercive processes of a strike or lockout. Defiance of the He has rendered exemplary service to the company for 20
assumption order or a return-to work order by a striking years. His co-employee and kumpadre, Mac, called him over
employee, whether a union officer or a member, is an illegal the phone and requested him to punch his (Mac's) daily time
act and, therefore, a valid ground for loss of employment card as he (Mac) was caught in a monstrous traffic jam. Dion
status. (Grand Boulevard Hotel v. Genuine Labor acceded to Mac's request but was later caught by the
Organization of Workers in Hotel, Restaurant and Allied Personnel Manager while punching. Mac's time card. The
Industries (GLOWHRAIN), G.R. No. 153664, 18 July 2003, 406 company terminated the employment of Dion on the ground
SCRA 688, 710; Telefunken Semiconductors Employees of misconduct. Is the dismissal valid and just? Explain. (5%)
Union-FFW v. Court of Appeals, G.R. Nos. 143013-14, 18
December 2000, 348 SCRA 565, 582; Federation of Free

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LABOR LAW II – Atty. Charisma Nolasco

15. Amaya was employed as a staff nurse by St. Francis


Hospital (SFH) on July 8, 2014 on a probationary status for
six (6) months. Her probationary contract required, among
others, strict compliance with SFH's Code of Discipline. On
October 16, 2014, Dr. Ligaya, filed a Complaint with the SFH
Board of Trustees against Amaya for uttering slanderous
remarks against the former. Attached to the complaint was a
letter of Minda, mother of a patient, who confirmed the
following remarks against Dr. Ligaya: "Bakit si Dr. Ligaya pa
ang napili mong 'pedia' eh ang tandatanda na n'un? E
makakalimutin na yun xx x Alam mo ba, kahit wala namang
diperensya yung baby, ipinapa-iso/ate nya?" The SFH
President asks you, being the hospital's counsel, which of
these two (2) options is the legal and proper way of
terminating A maya: a) terminate her for a just cause under
Article 288 of the Labor Code (Termination by Employer); or
b) terminate her for violating her probationary contract.
Explain. ( 5%)

16.

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