JURISDICTION in LABOR LAW - Reviewer
Actual reinstatement – EE is reinstated
JURISDICTION
Illegal dismissal should be filed in the
regional arbitration branch of the NLRC subject
to the jurisdiction of the workplace of the
complainant. It should be filed in the Labor
Arbiter.
SENA – Single entry approach
SENA proceedings – a preliminary conferences.
An amicable settlement.
There can be 2 amicable settlement
granted by the LA, in accordance with the
principle that technical rules of procedure and
evidence are laxed in labor proceeding in accord
in doctrince of speedy labor justice.
If no settlement is reach, it is now the
discretion of the LA to require the parties to
submit simultaneously their possession papers.
(sabay tayo)
Upon submission of the of the last
pleadings, it is now submitted for resolution for
30 days but 90 days for OFW.
What are the normal consequences of
the illegal dismissal?
1. Reinstatement
2. Fullback wages
3. Damages
4. Attorney’s fees
5. Other benefits
6. Legal interest of 6%
The decision of the LA is self-executory. It does
not need to file execution. You can immediately
report in your work.
If the ER is stubborn in accepting and
retaining an EE, the lawyer of the EE may file
an action:
1. To cite in contempt the ER
2. Payment of Monthly salary pursuant to
the labor code
3. LA may issue an ex parte execution
There are 2 options given to the ER:
1.
to his formal possession, he performs his
job.
2. Payroll reinstatement – he is reinstated
in the payroll, he does not performs his
job and being paid of compensation.
ER terminates EE because:
1. Valid reason to terminate
2. ER does not want to see him anymore in
the work premises.
Decisions of the LA are appealable in NLRC.
Decisions of the NLRC are not self-executory
unlike with the LA.
Reinstatement – restoration of EE former
possession.
There are cases that no reinstatement can be
made:
1. Dismissal for cause
2. If the EE do not want to be reinstated. (it
is his right) Under the Doctine of Labor
and Laches.
The prescripted period of reinstatement is 4
years.
The principle of strange relationship cannot be
justly applied be ER in order to frustrate
reinstatement. SC ruled that ER cannot
frustrate reinstatement by saying that their
relationship has become strange.
CASES WHEN REINSTATEMENT IS NOT
PROPER:
1. SEVERE ANTAGONISM – no need for
reinstatement, but he should be awarded
separation pay as a form of compromise
to reinstatement.
2. If the position is already filled up – he
should be reinstated in a substantially
equivalent possession. If there is no
equivalent possession, he should be
awarded separation pay, as a
compromise to reinstatement.
3. If the position is already abolished – in
this case there is legal possibility but
there is physical impossibility, therefore,
he should be awarded separation as a
form of compromise for reinstatement.
4. Reinstatement is not proper, when he
was 30 when he was dismissed but he is
 65 at the time of reinstatement, he
should be paid separation pay, cost of
his retirement.
5. If EE has physical disability, if he lost
his 2 hands. There is analogous in this
case, such as when an EE is sick with an
incurable disease and contagious
disease.
6. If reinstatement is not conducive to
working harmony.
7. If mandated by law. If the law does not
allow reinstatement. OFW including a
seaman. They are entitled to monetary
benefits corresponding to an unexpired
portion of employment contract
pursuant to Galac maritime doctrine as
affirmed in SAMER v CABILES.
Same also with kasambahay law,
domestic worker, domestic servant,
house helper, pursuant to the principle
of fiduciary relationship.
FULL BACK WAGES – the income earned
derived by the EE from other sources cannot be
deducted from the back wages. March 21, 1989.
DAMAGES – not only damages by the Labor
Code but also damages under the Civil Code can
be awarded by the LA.
Award of damages is proper because in
the words of the SC, in case of illegal dismissal,
the dismissal was done in an oppressive,
whimsical, arbitrary, capricious, or against
public policy, good conduct etc.
In the award of damages the LA arbiter
should discuss the factual and legal basis for the
award in the text in the decision itself.
The quantum of proof is substantial
evidence.
ATTORNEY’s FEES – it is in the form of
damages. It is fixed at 10% maximum. The LA
has the discretion to reduce it. It is proper
because an EE is compelled to litigate his case.
LA can award which is not prayed.
LEGAL INTEREST OF 6% -
GROUNDS FOR APPEAL:
1. Grave abuse of discretion
2. Error in the filing time
3. Question of law
4. Fraud and corruption
REQUIREMENTS FOR APPEAL
1. Payment of docket fee, Filing fee and
Appeal fee – non-payment of docket fee
is fatal to appeal. Payment of docket fee
is not a matter of procedure but of
jurisdiction. It is a jurisdictional
requirement.
2. Submission of the memorandum of
appeal – you copy furnish the other
party. You are given 10 days to submit
comment or answer thereto.
3. Posting of a bond, Appeal bond – the
most important requirement.
2 types of bond:
a. Cash
b. Surety - it should be issued by the surety
company with the authority and license
to issue it. He should issue such bond
when it has actual license and authority.
Exception – SC said that when the value
of the property is substantial to cover the
monetary award then, property bond can
be accepted.
The LA does not fix the bond, it is the
law itself. Monetary award – damages
and attorney’s fees.
As to the appeal bond, SC ruled that
20% and above. Can he post 10%? No,
for purposes of perfecting appeal, NO!
10% posting a bond is applicable only if
the ER filed to motion to reduce bond. If
the ER filed a motion to reduce bond, he
may be allowed to post 10%. (mcburny
v Gatson)
If it is denied, you have 10 days
from the receipt of the denials to
complete the full amount of the bond.
Pay 90% of the bond.
4. Approval of the
5. Personal service
3FOLD PURPOSE OF MOTION FOR
RECONSIDERATION:
1. To rectify the error committed by the
NLRC
2. To comply with the doctrine of
exhaustion of administrative remedies
3. It is a condition sine qua non for a
certiorari.
3 ESSENTIAL DATES that you are going to
incorporate in your petition, you are going to file
this within the period of 60 days.
1. Date of receipt of the decision of the
NLRC
2. The date when you file the motion for
reconsideration
3. The date of receipt of denial
There is no appeal from NLRC to CA, only
certiorari.
During the arbitration, the parties are required to
attend but the lawyers of the parties are not
required to attend.
If MR is denied you still have 15 days fresh
period to appeal. You can file extension of time
but the total period shall not exceed 30 days.
Appeal by certiorari for purposes of review on
the sole ground of question of law from CA to
SC because SC is not a fact finder, it is not a
trier of facts.
Exception: if the decision of the CA is based on
the surmises, conjectures, fraud, corruption,
etc…
If the decision of the LA, NLRC, and
CA are odds with each other.
TYPES OF EMPLOYMENT
1. Regular –
Types of regular employment:
a. Regular employment as to nature of
work. – that the EE performs job that is
is necessary and desirable in the
business of the ER.
EX. Pedro a mechanic in the auto repair
shop.
b. Regular employment as to years of
service. – when EE performs work for 1
year.
555 – regular because he already performed
services for 1 year.
Another is constant rehiring and constant
renewal of contract.
Successive renewal and rehiring is an indication
of regular employment.
Exception – in cases of OFW and seaman, they
cannot attain regular employment because they
are hired for a fixed period. EE, knows that on a
day certain the contract will expire and he will
be terminated. No need for notice for
termination of EE, because in the words of the
SC, upon the expiration of the period of term of
contract, the contract terminates by itself.
2. Casual - when EE performs work that is
incidental to the principal business of
the ER.
3. Probationary – this is the period for
training and learning the work, upon the
expiration of the training period he
becomes regular EE. The general
probationary period is 6 months. EE and
ER can agree less 6 months. More than
6 months is allowed if it requires
extensive training.
Apprentice – if apprenticeship contract is
prematurely terminated he will be a regular
EE. Double or successive probation is not
allowed by law.
4. Seasonal – seasonally employed. An EE
employed from season to season
performing the same task is already
treated as a regular EE. Therefore,
covered under by the Social security
Code.
5. Contractual – a contractual EE can be a
regular EE by constant rehiring.
6. Project – for every project terminated,
there must be a report of termination in
the nearest regional office of the land.
7. Non-project – EEs belong to the work
pool. Upon the termination of the
project the EE goes back to the work
pool but it doesn’t mean that they are
terminated because at any time they can
be taken out into a work pool for
another project.

RETIREMENT – it is the bilateral act of the EE
and ER wherein an EE upon reaching a certain
age has to dissociate himself from Employment
because in order for him to have a chance to
enjoy the remaining years of their lives.
COMPONENT PARTS OF THE
RETIREMENT PAY:
15 days salary of a man x the number of
years of service.
1/12 of 13 month pay.
PRESCRIPTIVE PERIODS:
1. Money claims – 3 yrs
2. Incremental proceeds out of tuition fee
hikes - 3 yrs
3. EE compensation claims - 3 yrs
4. Union funds – 3 yrs
5. Criminal cases under the LC – 3 yrs as a
rule
Except:
a. ULP – 1 yr
b. Simple illegal recruitment - 5 yrs
c. Syndicated illegal recruitment - 20
yrs
d. Large scale – 20 yrs
6. Illegal dismissal - 4 yrs – there is injury
to the constitutional right of the workers
that is why the civil code prescription is
followed.
7. Reinstatement – 4 yrs
8. Back wages, damages, attorney’s fees –
4 yrs becase they are but a consequence
of illegal dismissal.
9. Social security claims – 10 yrs
10. Contributions – 20 yrs
11. GSIS claim - 4 yrs
Money claims:
5k or less – regional director
The claim for reinstatement – LA
Except – assumption power of the President and
Sec. of Labor over labor disputes and visitorial
power.
CASES COGNIZABLE BY THE LA
1. Damages
2. Attorney’s fees
3. All normal conseqquences of illegal
dismissal
4. And all other cases provided by
relationship. There must be nexus
between EE and ER otherwise then the
regular courts have the jurisdiction.
5. Strike and lockout
Except - on the assumption power of the
sec of Labor.
Strike – is the temporary stoppage of
work arising from a labor dispute.
KINDS OF STRIKE
1. Authorize - with the approval of the
union members
2. Unauthorized – (wildcat strike) –
without the approval of the union
membership.
3. Particular/ ordinary - it is confined in
one particular establishment.
4. General – it is a political in nature. It is
against the government. Ex. WELGA
NG BAYAN
5. Slow down, sit down, quickie - all of
short duration and the purpose of this
strike is to reduce production.
REQUIREMENTS FOR A LAWFUL STRIKE
1. Collective bargaining
2. Authorized by the union members
3. Is must pass 2 stages of bargaining
deadlock
4. Filing of the notice of strike
5. It is staged with an strike able issue
6. In compliance with the 24 hr notice rule.
Before conducting a strike voting, they
must send notice to the ER and MCLE
7. Cooling off period – to reduce the
tension.
Intra-union dispute is not a non-strike able issue.
During the cooling off period – the reckoning
period of the 7 day strike ban is from the
expiration of the cooling off period.
Economic strike - 30 plus 7
ULP – 15 plus 7
SC ruled that if there is a union busting you can
dispensed with the cooling off period but you
cannot dispensed with the 7 day strike ban or
waiting period which in every case you must
complied with. Strike ban is mandatory.
8. Compliance with the doctrine of means
and purpose. Intimidation, coercion.
Violence.
Only entrance and only exit - obstructing it is
illegal. You put spikes.
Libelous, Slanderous, spurious words will make
the strike illegal.
If illegal, the officers of the union are
liable for dismissal under the doctrine of
vicarious liability.
Ordinary strikers are not liable for
dismissal unless they participated actively in an
illegal act during the strike.
If strike is legal the strikers are to be
reinstated otherwise they should not be
reinstated. Except – if ER voluntarily reinstate
them.
Strikers are to be awarded back wages
and back pays. No work no pay principle.
Right to strike cannot be waived, except
in the following instances:
1. In case there is a “no strike, no lockout
clause”
2. Assumption order – right to strike is
deemed waived.
Government EE cannot institute a strike because
it is a form of insurrection against public
authority in the light of the principle of state
sovereignty. It is a violation of civil service law.
Except – the EE of the GOCC without original
charters known as the subsidiaries.
International organization, LA don’t have
jurisdiction because these bodies are granted
with functional immunities.
Interpretation of the CBA – voluntary arbitrators
have jurisdiction.
Right to self-organization.
RIGHTS OF THE UNION
1. Right to representation – it only applies
to unionize.
2. To be certified as the bargaining agent –
applies to all EE, members and non-
members of the union.
3. To sue and be sued
4. Right to tax exemption
5. Right to property
6. Right to see financial statement
Who can file in the certification election?
A dismissed EE can vote in a Cert elec
provided he contested the validity of his
dismissal because SC ruled that he has
unabandoned right to reinstatement.
Union opposed on the ground on non-proper
forum is valid.
25% consent of subscription requirement. The
best forum rule. If the 25% is met you conduct a
certification election.

AFP, high level employees, BJMP, BFP cannot

institute a strike.

If the LA have jurisdiction over the main case,

he also has jurisdiction over cases which are
incidental thereto.

LA has jurisdiction over church man on matters

which are not religious.

In the decision of computing back wages, LA

have jurisdiction.