LABOR LAW REVIEW NOTES; LABREL
Partial or Quickie Strike
1. Strike
Strike is any temporary stoppage of work by the
concerted action of employees as a result of an
industrial or labor dispute. (Art. 219 [212] [o])
Strike encompasses not only work stoppages but also
the following:
a. Slowdowns;
b. Mass leaves;
c. Sit-downs;
d. Attempts to damage, destroy, or sabotage plant
equipment and facilities and similar activities; or
e. Overtime boycott.
Concerted Activity is one undertaken by two or more
employees or by one on behalf of the others.
2. Lockout
Lockout means the temporary refusal of an employer
to furnish work as a result of an industrial or labor
dispute. (Art. 219 [212] [p])
It consists of:
a. Shutdowns;
b. Mass retrenchment and dismissals; (PD No. 823)
c. Employer’s act of excluding from his plant union
members previously employed by him. (Sta. Mesa
Slipways & Engineering Co., Inc. v. CIR, G.R. No. L-
4521, August 18, 1952)
3. Purpose of a strike
Strike has been considered the most effective weapon
of labor in protecting the rights of employees to
improve the terms and conditions of their
employment. It remains as the great equalizer. (Bisig
ng Manggagawa sa Concrete Aggregates, Inc. vs.
NLRC, G.R. No. 105090 September 16, 1993)
4. Forms of strikes
Partially lifted from Chan Reviewer
Strikes may be classified on the following bases:
a. Nature
i. Legal Strike
ii. Illegal Strike
iii. Mass leaves
iv. Boycott of Products
v. Overtime Boycott
b. Extent/Coverage
i. General
ii. Local
c. Nature of the Strikers’ Act
i.
ii. Sit-down Strike
iii. Slowdown Strike
d. Degree of Strikers’ Interest
i. Primary Strike
ii. Secondary Strike
iii. Sympathetic Strike
e. Purpose or Nature of Employee Interest
i. Economic Strike
ii. Political or ULP Strike
Lifted from Memaid
Forms of Strikes (LIE-UPS-SWISS-QuiC-G2LoR)
a. Legal Strike – one called for a valid purpose and
conducted through means allowed by law.
b. Illegal Strike – one staged for a purpose not
recognized by law, or if for a valid purpose,
conducted through means not sanctioned by law.
c. Economic Strike – one staged by workers to force
wage or other economic concessions from the
employer which he is not required by law to grant.
(Consolidated Labor Association of the Philippines
v. Marsman and Co., Inc., G.R. No. L-17038, July 31,
1964)
d. ULP Strike – one called to protest against the
employer’s acts of ULP enumerated in Art. 258
(formerly Art. 248) including gross violation of the
CBA and union busting.
e. Primary Strike is a strike conducted by the workers
against their employers involving a labor dispute
directly affecting them.
Note: It is legal because there is a labor dispute
involved.
f. Secondary Strikes are work stoppages of workers
of one company to exert pressure on their
employer so that the latter will in turn bring
pressure upon the employer of another company
with whom another union has a labor dispute.
Note: It is illegal because there is no labor dispute
involved. A strike can validly take place only in the
presence of and in relation to a labor dispute
between employer and employee.
g. Sit-Down Strike – characterized by a temporary
work stoppage of workers who thereupon seize or
occupy property of the employer or refuse to
vacate the premises of the employer.
Note: It is Illegal because it amounts to a criminal
act because the employees trespass on the
premises of the employer.
h. Wildcat Strike – work stoppage that violates the
labor contract and is not authorized and is
disowned by the union.
Note: It is Illegal because it fails to comply with
certain requirements of the law, to wit: notice of
strike, vote, and report on strike vote.
i. Sympathetic Strikes – work stoppages of workers
of one company to make common cause with
 other strikers of other companies, without
demands or grievances of their own against the
employer.
Note: It is illegal because there is no labor dispute
between the workers who are joining the strikers
and the latter’s employer.
j. Slowdown Strike - one staged without the workers
quitting their work but merely slackening or by
reducing their normal work output.
k. Quickie Strikes or Partial Strike – brief and
unannounced temporary work stoppage, including
slowdowns, unauthorized extension of rest
periods, and walkouts for portions of a shift or for
entire shifts.
l. Cause Oriented Strikes – to make a stand on
certain national issues.
Note: “Welga ng bayan” is illegal because it is a
political strike and therefore there is neither a
bargaining deadlock nor any ULP. It is a political
rally.
m. Good Faith Strike - a strike justified by belief in
good faith that the employer was committing
unfair labor practice at the time the strikers went
on strike. Good faith saves the strike from being
declared illegal and the strikers from being
declared to have lost their employment status.
n. General Strike- extends over a whole community,
province, state or country.
o. Local strike- is one undertaken by workers in a
particular enterprise, locality, or occupation; it
usually involves only one union or only one
industry.
p. Recognitional strike- a strike to compel the ER to
recognize one’s union.
5. Requisites of a valid strike (substantially the same
with requisites of a lockout)
Seven (7) Procedural but Mandatory Requisites:
(GF-SARC-7)
a. A strike [or lockout] must be based on valid and
factual Ground;
A strike [or lockout] must be based on either:
i. Collective Bargaining Deadlocks (CBD)
(economic); and/or
ii. Unfair Labor Practices (political). (Sec. 5,
Rule XXII, D.O. No. 40-03)
Note: The dispute must not be the subject of an
assumption of jurisdiction by the President or
the Secretary of Labor and Employment, a
certification for compulsory or voluntary
arbitration nor a subject of a pending case
involving the same grounds for the strike or
lockout.
b. A notice of strike [or lockout] must be Filed with
NCMB-DOLE;
i. At least thirty (30) days from the intended
date thereof, if the issues involved arose
from a CBD; or
ii. At least fifteen (15) days from the intended
date, if the issues raised are ULP in nature.
Purpose of time requirement in notice
The 15 and 30 days’ requirement, i.e., Cooling-
Off Period, is designed to afford parties the
opportunity to amicably resolve the dispute
with the assistance of the NCMB
Conciliator/Mediator.
Note: In the face of union busting where the
existence of the union is threatened, the 15-day
cooling-off period shall not apply and the union
may take action immediately:
i. After the strike vote is conducted;
ii. Its result submitted to NCMB-DOLE; and
iii. After the expiration of the 7-day waiting
period/strike ban.
Where to file the notice of strike or lockout
Notice must be filed with the Regional Branch of
the NCMB having jurisdiction over the
workplace of the union members.
Where two or more regional branches have
jurisdiction over the workplace, the Branch that
shall have first received the notice shall acquire
jurisdiction over the dispute to the exclusion of
the other/s.
By written agreement of both parties the venue
of the dispute shall be deemed waived (NCMB
Manual of Procedures for Conciliation and
Preventive Mediation Cases Rule IV, Sec. 4).
c. Service of 24-hour prior notice;
A notice must be served to the NCMB-DOLE at
least 24 hours prior to the holding of strike [or
lockout] voting by secret ballots, informing said
office of:
i. The decision to conduct a strike [or lockout]
vote; and
ii. The date, place and time thereof.
Purposes of giving notice of the conduct of a
strike vote
i. To inform the NCMB of the intent of the
union to conduct a strike vote;
ii. To give the NCMB ample time to decide on
whether or not there is a need to supervise
the conduct of the strike vote meeting; and
 iii. Should the NCMB decide, motu proprio or
upon the request of any interested party
including the employer, to supervise the
strike vote, to give it ample time to prepare
for the deployment of the requisite
personnel, including peace officers.
d. Secret-ballot Approval of the majority in the
strike [or lockout] voting;
For Strikes
A strike vote must be taken where a majority
vote of the total union membership must
Approve it, obtained by secret ballot in a
meeting duly called for the purpose.
Note: Where the total union membership was
178, about 60 of whom dismissed, but said
dismissal was being contested by the union, the
vote needed to pass a strike vote should be the
majority of the 178, which includes the 60. The
union cannot claim that the dismissal of the 60
is illegal and yet exclude them in trying to get
majority vote to hold a strike. (Industrial Timber
Corp. v. NLRC, G.R. No. 107302, June 10, 1997)
Purpose: To ensure that the decision to strike
broadly rests with the majority of the Union
members in general and not with a mere
minority, at the same time, discourage wildcat
strikes, union busting and even corruption
(DOLE’s Primer on Strike, Picketing and Lockout).
For Lockouts
A lockout vote must be taken where a majority
vote of the members of the Board of Directors
of a corporation or association or partners in a
partnership, must Approve it, obtained by
secret ballot in a meeting duly called for the
purpose.
e. A strike [or lockout] vote Report
The result of the strike [or lockout] voting should
be submitted to the NCMB-DOLE at least seven
(7) days before the intended date of strike or
lockout; subject to the cooling-off period.
Purpose: To ensure that a strike vote was indeed
taken and in the event that the report is false, to
afford the members an opportunity to take the
appropriate remedy before it is too late (DOLE’s
Primer on Strike, Picketing and Lockout).
Note: In the event the result of the
strike/lockout ballot is filed within the cooling-
off period, the 7-day requirement shall be
counted from the day following the expiration of
the cooling-off period (National Federation of
Sugar Workers v. Ovejera, G.R. No. L-59743,
May 31, 1982). In effect, the seven (7) days are
ADDED to the 15-day or 30-day cooling off
period, as the case may be.
f. Except in cases of union busting, the Cooling off
period prescribed by law should be fully
observed; and
g. The 7-day waiting period or strike ban after
submission of strike [or lockout] vote to the
NCMB-DOLE should be fully observed in ALL
cases, including union busting.
Should the dispute remain unsettled until the
lapse of the cooling-off periods from the filing of
the notice of strike [or lockout] with the NCMB-
DOLE, the labor union may strike or the
employer may commence a lockout after having
complied with the 7-day waiting period of
the strike or lockout vote, as the case may be.
Note: The cooling-off period is counted from the
time of the filing of notice of strike while the 7-
day waiting period/strike ban is reckoned from
the time the strike [or lockout] vote report is
submitted to the NCMB-DOLE.
6. Valid grounds for a strike [or a lockout]
CBD and/or ULP; See first requisite.
Note: The union/employer may not file a notice
based on grounds other than ULP and
CBD. Violations of CBAs, except flagrant and/or
malicious refusal to comply with its economic
provisions, shall not be considered unfair labor
practice and shall not be strikeable and no strike or
lockout may be declared on grounds involving inter-
union and internal union disputes or on issues
brought to voluntary or compulsory arbitration
including legislated wage orders and labor standard
cases.
7. Bargaining deadlock
Bargaining deadlocks are often referred to as
“interest disputes.” This kind of disputes relates to
disputes over the formation of collective
agreements or efforts to secure them. They arise
where there is no such agreement or where it is
sought to change the terms of one and therefore
the issue is not whether an existing agreement
controls the controversy. They look to the
acquisition of rights for the future, not to assertion
of rights claimed to have vested in the past.

8. When should the union file a notice of strike
Same with Second Requisite under 5 [b] above.
A notice of strike or lockout must be Filed with
NCMB-DOLE;
a. At least thirty (30) days from the intended date
thereof, if the issues involved arose from a
collective bargaining deadlock; or
b. At least fifteen (15) days from the intended
date, if the issues raised are in the nature of
unfair labor practices.
9. Purpose of the cooling-off period
Same with Second Requisite under 5 [b] above.
It is that period of time given to the NCMB to
mediate and conciliate the parties. It is that span of
time allotted by law for the parties to settle their
disputes in a peaceful manner, before staging a
strike or lockout.
It is reckoned from the time when the notice of
strike or lockout is filed with the NCMB, a copy of
said notice having been served to the other party
concerned. Otherwise, the mere filing of the notice
with the NCMB without a proof of valid service
thereof to the other party concerned will not trigger
the running of the cooling-off period.
10. Purpose of the 7-strike ban
7-Day Strike Ban – the 7-day waiting period before
the date of the purported strike (within which the
union intending to conduct a strike must at least
submit a report to the Department as to the result
of the strike vote) intended to give the Department
an opportunity to verify whether the projected
strike really carries the imprimatur of the majority
of the union members in addition to the cooling-
off period before actual strike.
11. No-strike no-lockout clause
The right to strike is NOT absolute. It has heretofore
been held that a no strike, no-lockout provision in
the CBA is a valid stipulation although the clause
may be invoked by an employer only when the
strike is economic in nature or one which is
conducted to force wage or other concessions from
the employer that are not mandated to be granted
by the law itself (but not ULP cases).
a. SIGNIFICANCE OF THE CLAUSE.
A “No Strike, No Lockout” clause in the CBA is an
expression of the firm commitment of the
parties thereto that, on the part of the union, it
will not mount a strike during the effectivity of
the CBA, and on the part of the employer, that
it will not stage a lockout during the lifetime
thereof.
This clause may be invoked by an employer only
when the strike is economic in nature or one
which is conducted to force wage or other
concessions from the employer that are not
mandated to be granted by the law itself. It does
not bar strikes grounded on unfair labor
practices. This is so because it is presumed that
all economic issues between the employer and
the bargaining agent are deemed resolved with
the signing of the CBA.
The same rule also applies in case of lockout.
The said clause may only be invoked by the
union in case the ground for the lockout is
economic in nature but it may not be so cited if
the ground is unfair labor practice committed by
the union.
b. EFFECT OF VIOLATION OF THE CLAUSE. A strike
conducted in violation of this clause is illegal.
12. Commission of an unlawful act during a strike- will
it make the strike illegal
A strike may be legal at its inception but eventually
be declared illegal if the strike is accompanied by
violence which is widespread, pervasive and
adopted as a matter of policy and not merely
violence which is sporadic which normally occur in
a strike area.
13. Prohibited activities
Who has jurisdiction to determine the legality of
strike or lockout?
a. Labor Arbiter – upon the filing of a proper
complaint and after due hearing;
b. DOLE Secretary – in case where he assumed
jurisdiction and the illegality or legality of the
strike/lockout is raised; and
c. NLRC – in case certified by the Secretary of
Labor to the Commission for compulsory
arbitration.
Labor Organization
No labor organization or employer shall declare a
strike or lockout:
a. Without first having bargained collectively in
accordance with Title VII of this Book;
b. Without first having filed the notice required in
Art 27; and
 c. Without the necessary strike or lockout vote
first having been obtained and reported to
DOLE.
No Strike or Lockout shall be declared
a. After assumption of jurisdiction by the
President or the Secretary of Labor;
b. After the certification or submission of the
dispute to compulsory or voluntary arbitration;
or
c. During the pendency of cases involving the
same grounds for the strike or lockout.
Prohibited Activities under Article 278 (formerly
Art. 264)
a. No labor organization or employer shall declare
a strike or lockout without first having
bargained collectively or without first having
filed the notice required or without the
necessary strike or lockout vote first having
been obtained and reported to the DOLE.
b. No strike or lockout shall be declared after
assumption of jurisdiction by the President or
the Secretary of Labor or after certification or
submission of the dispute to compulsory or
voluntary arbitration or during the pendency of
cases involving the same grounds for the strike
or lockout. No person shall obstruct, impede, or
interfere with, by force, violence, coercion,
threats or intimidation, any peaceful picketing
by employees during any labor controversy or in
the exercise of the right to self-organization or
collective bargaining, or shall aid or abet such
obstruction or interference.
c. No employer shall use or employ any strike-
breaker, nor shall any person be employed as a
strike-breaker.
d. No public official or employee, including officers
and personnel of the Armed Forces of the
Philippines or the Integrated National Police
(now the Philippine National Police), or armed
person, shall bring in, introduce or escort in any
manner, any individual who seeks to replace
strikers in entering or leaving the premises of a
strike area, or work in place of the strikers.
e. No person engaged in picketing shall commit
any act of violence, coercion or intimidation or
obstruct the free ingress to or egress from the
employer’s premises for lawful purposes, or
obstruct public thoroughfares.
14. Strike-breaker
Strike-Breaker is any person who obstructs,
impedes or interferes by force, violence, coercion,
threats or intimidation with any peaceful picketing
by employees during any labor controversy
affecting wages, hour or conditions of work or in
the exercise of the right to self-organization or
collective bargaining.
15. Runaway shop
It is an unfair labor practice of management which
usually takes place by effecting the transfer of
ownership, the plant itself, or its equipment, or by
temporarily closing its business purposely to bust
the union or to evade the payment of legitimate
obligations.
16. Penalties imposable re: participation in strikes
It depends if the strike is lawful or not.
Lawful Strike
An employee who goes on strike is not deemed to
have abandoned his employment but is merely
exercising his right to self-organization precisely to
protect his rights as an employee and/or to obtain
better working conditions.
The mere participation of a worker in lawful strike
shall not constitute sufficient ground for the
termination of his employment even if a
replacement has been hired by the employer during
such lawful strike. However, any union officer who
knowingly participates in an illegal strike and any
worker or union officer who knowingly participates
in the commission of illegal acts during a strike may
be declared to have lost his employment status.
Unlawful for Performing any of the Prohibited
Activities
Any person violating any of the provisions of Article
265 of the Labor Code (performing any of the above
prohibited activities) shall be punished by a fine of
not exceeding P500.00 and/or imprisonment for
not less than one (1) day nor more than six (6)
months.
If the person so convicted is a foreigner, he shall be
subjected to immediate and summary deportation
and will be permanently barred from re-entering
the country without the special permission of the
President.
If the act is at the same time a violation of the
Revised Penal Code (RPC), a prosecution under the
Labor Code will preclude prosecution for the same
act under the RPC or vice-versa.
Liability of Persons Committing Prohibited Acts
under Art. 278 formerly Art. 264:
 Any person violating any of the provisions of Art.
278, formerly Art. 264, shall be punished by a fine
of not less than P1,000.00 nor more than
P10,000.00 and/or imprisonment for not less than
three (3) months nor more than three (3) years or
both at the discretion of the court.
If the person so convicted is a foreigner, he shall be
subjected to immediate summary deportation and
will be permanently barred from re-entering the
country without the special permission of the
President of the Philippines.
If the act at the same time is a violation of the RPC,
a prosecution under the Labor Code will preclude
prosecution for the same act under the RPC, or vice
versa.
17. (a) Picketing, defined (b) Is a permit needed? (c)
Requisites for lawful picket.
a. Picketing is the act of workers in peacefully
marching to and fro before an establishment
involved in a labor dispute generally
accompanied by the carrying and display of
signs, placards and banners intended to inform
the public about the dispute.
b. No, permit is not needed since it is only an act
of addressing their grievances to inform the
public without resorting to violent means and
only done within the employer's premises.
c. Requisites for lawful picketing
The seven (7) requisites for a valid strike [or
lockout] discussed above do not apply to
picketing. The most singular requirement to
make picketing valid and legal is that it should
be peacefully conducted.
i. The picket should be peacefully carried out;
ii. There should be no act of violence, coercion
or intimidation attendant thereto;
iii. The ingress to (entrance) or egress from
(exit) the company premises should not be
obstructed; and
iv. Public thoroughfares should not be
impeded.
3. RIGHT TO PICKET IS PROTECTED BY THE
CONSTITUTION AND THE LAW. Unlike a strike
which is guaranteed under the Constitutional
provision on the right of workers to conduct
peaceful concerted activities under Section 3,
Article XIII thereof, the right to picket is
guaranteed under the freedom of speech and
of expression and to peaceably assemble to air
grievances under Section 4, Article III (Bill of
Rights) thereof.
4. EFFECT OF THE USE OF FOUL LANGUAGE
DURING THE CONDUCT OF THE PICKET. In the
event the picketers employ discourteous and
impolite language in their picket, such may not
result in, or give rise to, libel or action for
damages.
5. PICKETING VS. STRIKE. (a) To strike is to
withhold or to stop work by the concerted
action of employees as a result of an industrial
or labor dispute. The work stoppage may be
accompanied by picketing by the striking
employees outside of the company compound.
(b) While a strike focuses on stoppage of work,
picketing focuses on publicizing the labor
dispute and its incidents to inform the public of
what is happening in the company being
picketed. (c) A picket simply means to march
to and fro in front of the employer’s premises,
usually accompanied by the display of placards
and other signs making known the facts
involved in a labor dispute. It is but one strike
activity separate and different from the actual
stoppage of work.
18. Can the employer hire replacement workers
during a strike?
Yes. The hiring of replacements for strikers during a
strike is not an unfair labor practice act of employer.
In cases of defiance of return-to-work order, or a
certification or assumption order, a hearing is not
required for the employer to validly hire
replacements for workers who committed the
defiance.
19. What would be the status of replacement
workers?
Qualified.
The status of replacement workers may be
permanent in case of an economic strike because
an employer is entitled to carry out his business.
In an unfair labor practice strike, such
replacements may not be permanently employed.
As held in Norton v. Norton, said replacement
workers must be deemed to have accepted their
employment as replacements with the knowledge
that the same is subject to the consequences of the
labor dispute between the strikers and the
company, on the resolution of which, depended the
effects of the strike as to the right to reinstatement
of the strikers.
20. Replacement workers- casual, project, fixed-term,
regular, or seasonal?
Rule on Hiring of Replacements
The hiring of replacements for the strikers during a
strike is not an unfair labor practice act of the
employer. Such hiring may even be done on a
permanent basis in case of an economic strike. An
employer is entitled to carry out his business. But in
an unfair labor practice strike, such replacements
may not be permanently employed. In case of
defiance of a return-to-work order, or a
certification or assumption order, a hearing is not
required for the employer to validly hire
replacement for workers who committed the
defiance.
21. Assumption/Certification of cases- when proper,
how done
Requisites of Assumption/Certification
a. When a labor dispute causes or is likely to cause
a strike or lockout
Actual strike [or lockout], even prior notice and
hearing, not essential
A labor dispute may be assumed by the
Secretary or certified to the NLRC even before
the actual staging of a strike or a lockout since
Article 263 of the Labor Code does not require
the existence of the strike but only of a labor
dispute involving national interest.
Prior notice and hearing are not required in the
issuance of the assumption or certification
order.
b. In an industry indispensable to national
interest
What constitutes “indispensable industry” is
based upon the discretion of the Secretary of
Labor. However, the President of the Philippines
shall not be precluded from determining
industries which in his opinion are indispensable
to the national interest. The following are
examples of industries indispensable to the
national interest: (HE-WAS)
i. Hospital Sector;
ii. Electrical Power Supply;
iii. Water Supply Services, to exclude small
water supply services such as bottling and
refilling stations;
iv. Air Traffic Control; and
v. Such other sectors as may be recommended
by the National Tripartite Industrial Peace
Council (DO 40-H-13)
c. The Secretary of Labor and Employment may:
i. Assume jurisdiction over the dispute and
decide it (personal); or
ii. Certify the same to the NLRC for compulsory
arbitration (delegation).
d. Provided that any of the following conditions is
present:
i. Both parties have requested the SOLE to
assume jurisdiction over the labor dispute;
or
ii. After a conference called by the SOLE on the
propriety of the issuance of the Assumption
or Certification Order, motu proprio or upon
the request or petition by either party to the
labor dispute. (Sec. 1, DO 40-H-13)
Note: In the said conference, the parties
shall also be encouraged to amicably settle
the dispute.
22. Effects of certification
a. Automatically enjoins the intended or
impending strike or lockout. (Automatic
Injunction).
Note: Assumption or Certification Orders are
executory in character and are to be strictly
complied with by the parties even during the
pendency of any petition questioning their
validity.
b. If one has already taken place at the time of
assumption or certification, all striking or
locked-out employees shall return to work
within 24 hours from receipt of the assumption
or certification order
c. The employer shall immediately resume
operations and re-admit all workers under the
same terms and conditions prevailing before
the strike or lockout. (DO 40-H-13)
Exception: When the reinstatement would be
impracticable and would only exacerbate the
situation such as when hotel employees shaved
their heads or cropped their hair which
embarrassed the hotel to its guests and
disrupted its operations (National Union of
Workers in the Hotel Restaurant and Allied
Industries- Dusit Hotel Nikko Chapter v. Court of
Appeals, G.R. No. 163942, November 11, 2008).
Note: It was held in the aforementioned case
that payroll reinstatement would be proper in
case circumstances arose which makes actual
reinstatement impracticable such as in cases
where teachers were ordered to return to work
in the middle of the semester of the academic
 year (UST v. NLRC, G.R. No. 89920, October 18,
1990); and wherein the employment is
confidential in nature (University of Immaculate
Conception, Inc. v. The Honourable Secretary of
Labor, G.R. No. 151379, Jan.14, 2005)
Parties are not prevented from submitting the
dispute to Voluntary Arbitrator with the DOLE
Secretary or his authorized representative as
Voluntary Arbitrator or Panel of Voluntary
Arbitrators.
A motion for reconsideration does not suspend
the effects, as the assumption order is
immediately executory.
Decision on the Assumed Labor Dispute;
Finality
Within five (5) days from the issuance of the
assumption or certification order, a preliminary
conference or hearing shall immediately be
conducted by the office of the Secretary of
Labor and Employment, the NLRC or the
Voluntary Arbitrator or Panels of Voluntary
Arbitrators as the case may be.
The decision of the Secretary of Labor, the NLRC
or Voluntary Arbitrator or Panels of Voluntary
Arbitrators shall be rendered within thirty (30)
calendar days from submission of the case for
resolution and shall be final and executory ten
(10) calendar days after receipt thereof by the
parties (D.O. No. 40-G-03, Series of 2010, as
amended by D.O. No. 40-H-13, Series of 2013,
Sec. 4).
23. Failure to comply with return-to-work order, what
are the effects as to employer and employee
This constitutes a valid ground for dismissal. The
following are the justifications:
a. A strike that is undertaken after the issuance by
the DOLE Secretary of an assumption or
certification order becomes a prohibited activity
and thus illegal. The defiant striking union
officers and members, as a result, are deemed
to have lost their employment status for having
knowingly participated in an illegal strike.
b. From the moment a worker defies a return-to-
work order, he is deemed to have abandoned
his job.
c. By so defying, the workers have forfeited their
right to be readmitted to work.
24. Is payroll reinstatement allowed in complying with
RTWO
Yes. To implement the return-to-work order, the
norm is actual reinstatement. However, payroll
reinstatement in lieu of actual reinstatement may
properly be resorted to when special circumstances
exist that render actual reinstatement
impracticable or otherwise not conducive to
attaining the purposes of the law.
25. Always actual reinstatement? No exceptions?
To implement the return-to-work order, the norm
is actual reinstatement. However, payroll
reinstatement in lieu of actual reinstatement may
properly be resorted to when special circumstances
exist that render actual reinstatement
impracticable or otherwise not conducive to
attaining the purposes of law.
26. Strike during the pendency of an MR filed after a
certification order, illegal?
Yes. Return-to-work order is compulsory and
immediately executory in character. It should be
complied with by the parties even if there is a
pending petition questioning its validity in order to
maintain the status quo while the determination is
being made. Filing of a motion for reconsideration
does not affect the enforcement of the return-to-
work order which is immediately executory.
27. Trade union activities
ART. 284 (formerly ART. 270): REGULATION OF
FOREIGN ASSISTANCE
Trade union activities shall mean:
a. Organization, formation and administration of
labor organization;
b. Negotiation and administration of collective
bargaining agreements;
c. All forms of concerted union action;
d. Organizing, managing, or assisting union
conventions, meetings, rallies, referenda,
teach-ins, seminars, conferences and institutes;
e. Any form of participation or involvement in
representation proceedings, representation
elections, consent elections, union elections;
and
f. Other activities or actions analogous to the
foregoing.
28. Are aliens prohibited from engaging in trade union
activities?
ART. 283 (formerly ART. 269): PROHIBITION
AGAINST ALIENS; EXCEPTIONS
 General Rule: All aliens, natural or juridical as well Visitorial Power Visitorial Power under
as foreign organizations are strictly prohibited from under 128 288
engaging in all forms of trade union activities. required to support
violation of member’s
Exception: Aliens who: rights.
a. Work in the country with valid permits issued by
the DOLE; and 30. Tripartism
b. Are nationals of a country which grants the
same or similar rights to Filipino workers. ART. 289 (formerly ART. 275): TRIPARTISM AND
TRIPARTITE CONFERENCES (Amended by R.A. No.
29. Visitorial power (Art. 288)- when exercised 10395)

The Secretary of Labor and Employment or his duly Tripartism is the representation of the three
authorized representative is empowered to inquire sectors – the public or the government, the
into financial activities of legitimate labor employers and the workers in policy-making bodies
organizations upon the filing of a complaint under of the government.
oath and duly supported by the written consent of a. Such kind representation in the policy-making
at least twenty percent (20%) of the total bodies of private enterprises is not ordained,
membership of the labor organization concerned not even by the Phil. Constitution and does not
and to examine their books of accounts and other mean representation in the corporate board.
records to determine compliance or non- b. What is provided is worker’s participation in
compliance with the law and to prosecute any policy and decision-making process directly
violations of the law and the union constitution and affecting their rights, benefits and welfare.
by-laws; Provided, That such inquiry or examination
shall not be conducted during the sixty (60) days Tripartism is observed in the following
freedom period nor within the thirty (30) days government agencies: (Not exclusive)
immediately preceding the date of election of union i. NLRC;
officials. ii. National Wages and Productivity
Commission;
Visitorial Powers iii. Employees Compensation Commission;
Under Art. 128 v. Art. 288 (formerly 274) iv. POEA Governing Board;
Visitorial Power Visitorial Power under v. Philippine Health Insurance Corporation;
under 128 288 vi. Social Security Commission; and
As to Coverage vii. GSIS Board of Trustees.
Pertains to
Administrative Speaks of enforcement Note: This amendment created the National
enforcement of: of law or regulation Tripartite Industrial Peace Council.
1. Labor Code relating only to
provisions financial activities and 31. NTIPC- give 2 functions/powers
2. All labor laws; and records of labor
3. Wage orders in organizations. It functions primarily as a forum for tripartite
employer advisement and consultation among organized
establishments. labor, employer and government in the
formulation and implementation of labor and
Art. 128 is broader
employment policies.
than Art. 288 [274].
As to Manner of Initiation The National TIPC is responsible for processing
Needs sworn major issuances affecting labor, employment
complaint filed and and other related concerns, as well as a
supported by at least clearinghouse for the recommendation and
Inspection may be 20% of the ratification or denunciation of International
done through the organization’s Labour Organization (ILO) Conventions.
DOLE’s initiative. membership.
The TIPCs shall have, among others, the
Note: in Art. 250 following functions:
[formerly 241], 30% is
 a. Review existing labor, economic and social
policies and evaluate local and
international developments affecting
them;
b. Advise the SOLE in the formulation or
implementation of policies and legislation
affecting labor and employment (RA No.
10395, An Act Strengthening Tripartism,
Amending for the Purpose Article 275 of
Labor Code)

32. Government employees - do they enjoy the

right to self-organize, do they have the right to
collectively bargain with their employers

As held in SSSEA vs CA - - -
Government employees may, through their
unions or associations, either petition the
Congress for betterment of the terms and
conditions of employment which are within the
ambit of legislation or negotiate with the
appropriate government agencies for the
improvement of those which are not fixed by
law. If there be any unresolved grievances, the
dispute may be referred to the PSLMC for
appropriate action.

But they may not resort to strikes, walkouts

and other temporary work stoppages. (Section
4, Rule 3, Rules and Regulations to Govern the
Exercise of the Right of Government Employees
to Self-Organization)
 Post-Employment; Security of Tenure
33. Security of Tenure
Security of Tenure is the constitutional right
granted the employee, that the employer shall not
terminate the services of an employee except for
just cause or when authorized by law. It extends to
regular (permanent) as well as non-regular
(temporary) employment (Kiamco v. NLRC, G.R. No.
129449, June 29, 1999).
Note: Not every performance of services for a fee
creates an employer-employee relationship. To
hold that every person who renders services to
another for a fee is an employee- to give meaning
to the security of tenure clause- will lead to absurd
results (Sonza v. ABS-CBN Broadcasting Corp., G.R.
No. 138051, June 10, 2004).
Security of tenure clause is not confined to cases of
termination of employer-employee relationship
alone. It is also intended to shield workers from
unwarranted and unconsented demotion and
transfer.
Consequences of the Violation of a Worker’s
Security of Tenure: (RBD)
a. Reinstatement without loss of seniority rights
and other privileges;
b. Full Backwages, inclusive of allowances and
other benefits or their monetary equivalent
computed from the time his compensation was
withheld from him up to the time of his actual
reinstatement; and
c. Recovery moral and exemplary Damages and
attorney’s fees (ALCANTARA, Reviewer, supra
at 599).
34. Due process requirements
Two aspects:
a. Substantive aspect which means that the
dismissal must be for any of the:
i. Just causes; and
ii. Authorized causes.
b. Procedural aspect which means that the
employee must be accorded due process, the
elements of which are notice and the
opportunity to be heard and to defend himself.
Termination based on Just Cause: (Twin Notice
Rule and Hearing)
i. Written Notice (first/pre-notice) - served on
the employee specifying the:
 Material dates and the specific acts
committed by the employee which may
constitute as a ground for termination;
 Directive that the employees are given
the opportunity to submit their written
explanation within a reasonable time.
ii. Hearing or Conference (at least an
opportunity to be heard) - with or without
the assistance of counsel, the employee is
given the opportunity to respond to the
charge, present evidence, or rebut the
evidence presented against him. (Lavador v.
“J” Marketing Corporation and Soyao, G.R.
No. 157757, June 28, 2005)
Note: No hearing is needed if the employee
has admitted his guilt. (Bernardo v. NLRC,
G.R. No. 105819, March 1996)
iii. Written Notice of Termination (second/post-
notice) - indicating that after due
consideration of all the circumstances,
grounds have been established to justify his
termination. (Manggagawa ng
Komunikasyon sa Pilipinas v. NLRC, G.R. No.
90964, February 10, 1992).
35. First notice- contents
a. Material dates and the specific acts committed
by the employee which may constitute as a
ground for termination;
b. Directive that the employees are given the
opportunity to submit their written explanation
within a reasonable time.
36. Reasonable time
A period of at least 5 calendar days from the receipt
of the 1st notice to give the employees an
opportunity to study the accusation against them,
consult a lawyer, gather data and evidence and
prepare for their explanation and defenses.
37. Right to hearing- is it part of the due process
requirements
Yes. The twin requirements of notice and hearing
constitute the essential elements of due process.
However, due process of law simply means giving
opportunity to be heard before judgement is
rendered. In fact, there is no violation of due
process even if no hearing is conducted, where the
party is given a chance to explain his side of
controversy. What is frowned upon is the denial of
opportunity to be heard. (Perez v. Philippine
Telegraph & Telephone Company, G.R. No. 152048,
April 7, 2009).
38. When is the conduct of hearing mandatory- Perez
v. PTTC
A formal hearing or conference becomes
mandatory only when requested by the employee
in writing or substantial evidentiary disputes exist
or a company rule or practice requires it, or when
similar circumstance justify it.
39. Two-notice requirement- is it required in dismissal
for authorized causes? Two Notices Required but
not a Hearing
Yes. In employment terminations due to authorized
causes, the due process requirement is not
completely done away with. Investigation and
hearing need not be done by the employer. But the
one-month advance notices (1) to the affected
employee and (2) to DOLE must be complied with
under Art. 297 [formerly 283].
Thus, the requisites for termination based on
Authorized Causes are as follows:
a. Written Notice to:
i. Employee; and
ii. Appropriate Regional Office of DOLE; and
b. At least 30 days before the effectivity of the
termination, specifying the grounds.
Reason for immateriality of hearing: The ground
for dismissal or termination does not relate to a
blameworthy act or omission on the part of the
employee. (Azucena, The Labor Code, Vol. II [2013],
p. 887)
When Notice Not Needed
If an employee consented to his retrenchment or
voluntarily applied for retrenchment with the
employer due to the installation of labor-saving
devices etc., the required previous notice to DOLE
is not necessary as the employee acknowledged the
existence of a valid cause for termination.
(International Hardware, Inc., v. NLRC, G.R. No.
80770, August 10, 1989)
40. Notices- when furnished
a. For termination of employment based on just
causes – employee must be given a reasonable
opportunity to study the accusation against
him, consult a union official or lawyer, gather
data and evidence, and decide on the defenses
he will raise against the complaint, which must
be at least 5 calendar days from receipt of the
first notice (pre-notice). (King of Kings
Transport v. Mamac, G.R No. 166208, June 29,
2007)
b. For termination of employment based on
authorized causes – written notice to the
employee and the appropriate RO of DOLE at
least 30 days before the effectivity of the
termination, specifying the grounds. Each
notice must be served 30 days before the
employee’s separation takes effect.
c. If the termination is brought by the completion
of the contract or phase thereof, no prior notice
is required.
d. If the termination is brought by the failure of an
employee to meet the standards of the
employer in the case of probationary
employment, it shall be sufficient that a written
notice is served the employee within a
reasonable time from the effective date of
termination.
41. Purpose of notice
To ascertain the verity of the cause of the
termination.
Twin Notices; Purposes:
a. First Notice - to apprise him of the particular
acts or omissions for which his dismissal is
sought; and
b. Second Notice - to inform him of his employer’s
decision to dismiss him.
42. Dismissal of probationary employee- are notices
required.
It depends.
a. Yes, for JUST and AUHTORIZED causes.
Probationary employees are protected by the
security of tenure provision of the Constitution
and are entitled to procedural due process prior
to dismissal from the service.
A probationary employee may be terminated at
any time before the expiration of the
probationary period on three (3) grounds:
i. Just cause;
ii. Authorized cause; and
iii. When he fails to qualify as a regular
employee in accordance with reasonable
standards prescribed by the employer
(Universidad De Sta. Isabel v. Sambajon, Jr.,
G.R. Nos. 196280 & 196286, April 2, 2014).
Termination to be valid must be done prior to
lapse of probationary period (Pasamaba v.
NLRC, GR. No. 168421, June8, 2007)
 Termination a few days after the lapse of
probationary period cannot be done without
due process as he has already become a regular
employee by that time (San Miguel Corp. v. Del
Risario, GR No. 168194 & 168603, December 13,
2005)
b. No notice is needed if termination is based on
third ground, i.e., failure to meet ER standards.
Thus, if the termination is brought by the failure
of an employee to meet the standards of the
employer in the case of probationary
employment, it shall be sufficient that a written
notice is served the employee within a
reasonable time from the effective date of
termination. (Note that notice is still given, but
the same is not for imputation of any act or
omission justifying his/her termination)
Due Process of law for this ground consists of
making the reasonable standards expected of
the employee during his probationary period
known to him at the time of his probationary
employment (Philippine Daily Inquirer, Inc. v.
Magtibay Jr., G.R. No. 164532, July 24, 2007).
43. Fixed-term employee- are noticed required (NOT
SURE)
Notice of termination is NOT necessary in fixed-
term employment (Pangilinan v. General Milling
Corporation,supra)
Rationale: An employment contract for a definite
period terminates by its own term at the end of the
mutually agreed period fixed by the parties.
Temporary or Fixed-Period Employment is an
employment arrangement where an employee is
engaged to work on specific project or undertaking
which is usually necessary or desirable in the usual
business or trade of the employer, the completion
of which has been determined at the time of
engagement of the employee.
A fixed-period employee does not become a regular
employee because his employment is
conterminous with a specific period of time.
Employee is deemed regular if contract failed to
state the specific fixed period of employment.
(Poseidon Fishing v. NLRC, GR. No. 168052,
February 20, 2006)
Termination prior to lapse of fixed-term contract
should be for a just or authorized cause (Anderson
v. NLRC, GR No. 111212, January 22, 1996)
Liability for illegal dismissal of fixed-term employee
is only for salary for unexpired portion (New Sunrise
Metal Construction v. Pia, GR No. 171131, July 10,
2007).
44. Notice to employee- how made? Personal service?
Notices shall be served PERSONALLY to the
employee or to the employee’s last known address,
either by ordinary or registered mail (preferred).
The mere posting of petitioners' notice to terminate
private respondents' employment on the
employees' bulletin board is not sufficient
compliance with the statutory requirement.
(Shopper’s Gain Supermart v. NLRC, G.R. No.
110731, July 26, 1996).
If the employee refused to receive notice, the
employer must serve the same by registered mail at
his last known address. (Nueva Ecija Electric Coop.,
v. NLRC, G.R. No. 157603, June 23, 2005)
45. When should the LA order the reinstatement of an
employee
The LA may order reinstatement pursuant to Article
223 (now 230), to wit:
"In any event, the decision of the LA reinstating a
dismissed or separated employee, insofar as the
reinstatement aspect is concerned, shall
immediately be executory, even pending appeal.
The employee shall either be admitted back to work
under the same terms and conditions prevailing
prior to his dismissal or separation or, at the option
of the employer, merely reinstated in the payroll.
The posting of a bond by the employer shall not stay
the execution for reinstatement provided herein."
Further, under the 2011 NLRC Rules of Procedure,
there are two (2) instances when a writ of execution
should still be issued immediately by the LA to
implement his order of reinstatement, even
pending appeal, viz:
a. When the ER disobeys the Rules-prescribed
directive to submit a report of compliance
within ten (10) calendar days from receipt of the
decision; or
b. When the ER refuses to reinstate the dismissed
EE.
 The LA shall motu proprio issue a corresponding
writ to satisfy the reinstatement wages as they
accrue until actual reinstatement or reversal of the
order of reinstatement.
The EE need not file a motion for the issuance of the
writ of execution since the LA shall thereafter motu
proprio issue the writ. ER may be cited for contempt
for his refusal to comply with the order of
reinstatement.
ER is liable to pay the salaries for the period that the
employee was ordered reinstated pending appeal
even if his dismissal is later found to be legal on
appeal.
46. What is reinstatement
Reinstatement is the restoration of the employee
to the state from which he has been unjustly
removed or separated without loss of seniority
rights and other privileges.
Forms of Reinstatement
a. Actual or Physical Reinstatement – the
employee shall be admitted back to work.
b. Payroll Reinstatement – the employee is merely
reinstated in the payroll (University of
Immaculate Concepcion, Inc. v. Hon. Secretary
of Labor, G.R. No. 151379, January 14, 2005).
Reinstatement
Order by the LA Order by the NLRC
Immediately Not immediately
executory executory
Pending appeal After final and
executory judgment
Actual or payroll Actual reinstatement
or separation pay in
lieu of reinstatement
(SPIR)
47. Separation pay in lieu of reinstatement- proper?
Separation pay in lieu of Reinstatement (SPIR)
Article 294 expressly mandates only reinstatement
and never the alternative remedy of separation pay
in lieu thereof. But jurisprudence clearly enunciates
the award of separation pay in the event
reinstatement is not feasible. Undeniably, it is a
recourse based on equity that has been sanctioned
by the Supreme Court in a catena of cases. (Session
delights Ice cream and fast foods v. CA G.R. No.
172149 February 8, 2010; Philthread Tire & Rubber
Corporation v. Vicente GR No. 14 2759) Nov. 10,
2004)
Instances where SPIR was awarded (CAS-MAIDS)
a. When employer’s business has closed down;
b. Abolition of the position When the former
position of the illegally dismissed employee no
longer exists;
c. That there is a resultant strained relation
(Doctrine of Strained Relations) (Manila Jockey
Club v. Trajano, G.R. No. 160982, June 26, 2013);
d. Merger of companies;
e. Attainment of retirement age;
f. Insolvency of the company;
g. Dissolution of the company;
h. Sale of the company;
i. It will not serve a prudent purpose;
i. Reinstatement may no longer be feasible;
ii. Reinstatement cannot be effected in view
of the long passage of time or because of
the realities of the situation;
iii. That it would be inimical to the employer’s
interest;
iv. Difficulty in enforcing the employee’s
reinstatement;
v. Injury or disability of the employee;
vi. Company will be prejudiced by the
reinstatement; or
vii. It will not serve the best interest of the
parties involved.
48. Rule with regard to awarding of separation pay-
Toyota Motor Phils. Corp. Workers Association v
NLRC
General Rule: When just causes for terminating the
services of an employee under Art. 282 of the Labor
Code exist, the employee is not entitled to
separation pay.
The apparent reason behind the forfeiture of the
right to termination pay is that lawbreakers should
not benefit from their illegal acts. The dismissed
employee, however, is entitled to “whatever rights,
benefits and privileges [s/he] may have under the
applicable individual or collective bargaining
agreement with the employer or voluntary
employer policy or practice” or under the Labor
Code and other existing laws.
This means that the employee, despite the
dismissal for a valid cause, retains the right to
receive from the employer benefits provided by
law, like accrued service incentive leaves. With
respect to benefits granted by the CBA provisions
and voluntary management policy or practice, the
entitlement of the dismissed employees to the
benefits depends on the stipulations of the CBA or
the company rules and policies.

Exception: Principle of Social Justice
One exception where separation pay is given even
though an employee is validly dismissed is when the
court finds justification in applying the principle of
social justice well entrenched in the 1987
Constitution.
For termination like inefficiency, drug use, and
others, the NLRC or the courts may opt to grant
separation pay anchored on social justice in
consideration of the length of service of the
employee, the amount involved, whether the act is
the first offense, the performance of the employee
and the like, using the guideposts enunciated
in PLDT on the propriety of the award of separation
pay.
Social justice is not applicable in case of serious
misconduct and acts that reflect on the moral
character of the employee
Where the reason for the valid dismissal is, for
example, habitual intoxication or an offense
involving moral turpitude, like theft or illicit sexual
relations with a fellow worker, the employer may
not be required to give the dismissed employee
separation pay, or financial assistance, or whatever
other name it is called, on the ground of social
justice.
In addition to serious misconduct:
Dismissals based on other grounds under Art. 282
like willful disobedience, gross and habitual neglect
of duty, fraud or willful breach of trust, and
commission of a crime against the employer or his
family, separation pay should not be conceded to
the dismissed employee.
Note: In this case (Toyota), the award of separation
pay to the Union officials and members in the
instant petitions cannot be sustained. Considering
that the dismissal of the employees was due to their
participation in the illegal strikes as well as violation
of the Code of Conduct of the company, the same
constitutes serious misconduct.
Serious misconduct committed by the union
members and officials:
a. Intentionally incurring absences in a collective
fashion from work on February 22 and 23, 2001
just to attend the DOLE hearings.
b. Illegal strikes from March 28 to April 12, 2001,
when the gates of Toyota were blocked and
barricaded, and the company officials,
employees, and customers were intimidated
and harassed.
c. Their resort to mass actions on several
occasions in clear violation of the company
regulation cannot be excused nor justified.
d. They blatantly violated the
assumption/certification Order of the DOLE
Secretary, exhibiting their lack of obeisance to
the rule of law.
49. Hypo: employee committed theft- can he be
awarded separation pay?
No. Where the reason for the valid dismissal is, for
example, habitual intoxication or an offense
involving moral turpitude, like theft or illicit sexual
relations with a fellow worker, the employer may
not be required to give the dismissed employee
separation pay, or financial assistance, or whatever
other name it is called, on the ground of social
justice. (Del Monte Philippines, Inc. vs. NLRC, 188
SCRA 370, G.R. No. 87371 August 6, 1990)
50. Doctrine of strained relations
Doctrine of Strained Relations
Under the circumstances where the employment
relationship has become so strained to preclude a
harmonious working relationship, and that all
hopes of reconciliation are nil after reinstatement,
it would be more beneficial to accord the employee
backwages and separation pay.
Requisites:
a. The employee concerned occupies a position
where he enjoys the trust and confidence of his
employer; and
b. If reinstated, an atmosphere of antipathy and
antagonism may be generated as to adversely
affect the efficiency and productivity of the
employee concerned (Globe-Mackay Cable and
Radio Corporation v. NLRC, G.R. No. 82511,
March 3, 1992).
Even in cases of illegal dismissal, the doctrine of
strained relations is not applied indiscriminately
as to bar reinstatement, especially when the
employee has not indicated an aversion to
returning to work or does not occupy a position
of trust and confidence in or has no say in the
operation of the employer’s business (Leopard
Security and Investigation Agency v. Quitoy, G.R.
No. 186344, February 20, 2013).
51. Backwages
Backwages is the relief given to an employee to
compensate him for lost earnings during the period
of his dismissal. It presupposes illegal termination.
 Note: Entitlement to backwages of the illegally longer possible, until
dismissed employee flows from law. Even if he does the finality of the
not ask for it, it may be given. The failure to claim decision.
backwages in the complaint for illegal dismissal is a As to Reason for Payment
mere procedural lapse which cannot defeat a right Paid as a wherewithal Paid for the loss of
granted under substantive law (St. Michael’s or assistance during earnings during the
Institute v. Santos, G.R. No. 145280, December 4, the period that an period between illegal
2001). employee is looking dismissal and
for another reinstatement.
Reinstatement Backwages employment.
Restores the Allows the same As to Purpose
employee who was employee to recover Oriented towards the Restoration of the past
unjustly dismissed to from the employer that future. income lost.
the position from which he had lost by way
which he was of wages as a result of his 53. Backwages- how computed
removed (i.e. to his dismissal.
status quo ante Computation of Backwages
dismissal). It is computed from the time of the illegal dismissal
up to time of actual reinstatement. If reinstatement
Note: The award of reinstatement is not is no longer possible, it is computed until finality of
inconsistent with the award of backwages. the decision (St. Joseph Academy of Valenzuela
Faculty Association v. St. Joseph Academy of
52. Award of SP + backwages at the same time- Valenzuela, G.R. No. 182957, June 13, 2013).
proper?
Rule on Backwages
Yes. Backwages and separation pay can co-exist. The backwages to be awarded should not be
The basis for the payment of backwages is different diminished or reduced by earnings elsewhere
from that for the award of separation pay. during the period of his illegal dismissal. The reason
is that the employee while litigating the illegality of
An illegally dismissed employee is entitled to two his dismissal must still earn a living to support
reliefs: backwages and reinstatement. himself and his family (Bustamante v. NLRC, G.R.
No. 111651, March 15, 1996; Buenviaje v. CA, G.R.
Backwages is paid for compensation which No. 147806, November 12, 2002).
otherwise the employee should have earned had
he not been illegally dismissed computed from the Inclusions in the Computation of Backwages
time of illegal dismissal up to actual reinstatement, a. Transportation and emergency allowances;
or if reinstatement is not possible, until the finality b. Vacation or service incentive leave and sick
of the decision. However, when reinstatement is leave; and
not feasible, separation pay as a substitute remedy c. 13th month pay.
is proper.
Note: Facilities such as uniforms, shoes, helmets
Separation Pay Backwages and ponchos should NOT be included in the
As to When Paid computation of backwages.
Separation pay is paid Backwages is paid for
when reinstatement is the compensation Reason: Said items are given free, to be used only
no longer possible. which otherwise the during official tour of duty not for private or
employee should have personal use.
earned had he not
been illegally 54. OT pay- included in the computation of
dismissed. backwages? Holiday pay? Transportation
As to Computation allowances?
Computed on the basis Computed from the
of the employee’s time of illegal dismissal a. OT pay – No, because OT pay is given only to
length of service. up to actual those who work overtime and is not normally a
reinstatement, or if part of the general compensation;
reinstatement is no
 b. Holiday pay - Yes if regular holiday, because the
12 days are paid regardless of whether the
employee worked or not; and
c. Transportation allowances - Yes (memaid page
166; also, codal says "inclusive of allowances")
55. Illegally dismissed OFW- what is he entitled to
receive
Lifted from Memaid
Seafarers are considered contractual employees.
Their employment is governed by the contracts
they sign every time they are rehired and their
employment is terminated when the contract
expires.
Hence they are not entitled to full backwages and
separation pay in lieu of reinstatement as provided
in Art. 293.
OFW’s who are terminated without just, valid or
authorized cause are entitled to:
a. Full reimbursement of placement fee and the
deductions made with interest at 12% per
annum; and
b. Salaries for the unexpired portion of the
employment contract.
Lifted from Chan Reviewer
All the reliefs available to an illegally dismissed OFW
are always monetary in nature.
It must be noted that under the 2009 Serrano
doctrine, (Antonio M. Serrano v. Gallant Maritime
Services, Inc.,), an illegally dismissed OFW is now
entitled to all the salaries for the entire unexpired
portion of their employment contracts,
irrespective of the stipulated term or duration
thereof. The underlined phrase in Section 10 below
has been declared unconstitutional in this case:
“In case of termination of overseas employment
without just, valid or authorized cause as defined by
law or contract, or any unauthorized deductions
from the migrant worker's salary, the worker shall
be entitled to the full reimbursement of his
placement fee and the deductions made with
interest at twelve percent (12%) per annum, plus
his salaries for the unexpired portion of his
employment contract or for three (3) months for
every year of the unexpired term, whichever is
less.”
However, R.A. No. 10022 (March 8, 2010), which
amended R.A. No. 8042 (Migrant Workers and
Overseas Filipinos Act of 1995), has replicated and
re-enacted the same unconstitutional provision
exactly as above quoted. The question is: was the
unconstitutionality of the above-underlined part
of the provision cured by such replication or re-
enactment in the amendatory law?
The 2014 en banc case of Sameer Overseas
Placement Agency, Inc. v. Joy C. Cabiles,2
answered this in the negative.
What are some principles in regard to monetary
awards to OFWs?
a. Monetary award to OFW is not in the nature of
separation pay or backwages but a form of
indemnity.
Only salaries are to be included in the
computation of the amount due for the
unexpired portion of the contract. Overtime,
holiday and leave pay and allowances are not
included. However, this rule on exclusion of
allowance does not apply in case it is
encapsulated in the basic salary clause.
b. Entitlement to overtime pay of OFWs. - As far
as entitlement to overtime pay is concerned,
the correct criterion in determining whether or
not sailors are entitled to overtime pay is not
whether they were on board and cannot leave
ship beyond the regular eight (8) working hours
a day, but whether they actually rendered
service in excess of said number of hours. An
OFW is not entitled to overtime pay, even if
guaranteed, if he failed to present any evidence
to prove that he rendered service in excess of
the regular eight (8) working hours a day.
c. In case of unauthorized deductions from OFW’s
salary, he shall be entitled to the full
reimbursement of the deductions made with
interest at twelve percent (12%) per annum.
This is in addition to the full reimbursement of
his placement fee with the same interest of
twelve percent (12%) per annum plus his
salaries for the unexpired portion of his
employment contract if he is terminated
without just, valid or authorized cause as
defined by law or contract.
 Post-Employment; Kinds of Employment
56. Different kinds of employment
Four Kinds of Employees under Art. 294 (formerly
ART. 280)
a. Regular employment;
b. Casual employment;
c. Project employment; and
d. Seasonal employment.
Other kinds of employment
a. Fixed-period employment (not mentioned
under Art. 294, but is not proscribed)
b. Probationary employment (Art. 295 [formerly
281])
Regular Employment
Employment arrangement where the employee:
a. Has been engaged to perform activities which
are usually necessary or desirable in the usual
business or trade of the employer;
b. Has rendered at least one (1) year of service,
whether such service is continuous or broken,
with respect to the activity in which he is
employed; or
c. When an employee is allowed to work after a
probationary period (LABOR CODE, Art. 295,
formerly Art. 281).
Test of Regularity
a. Nature of Work Test – whether or not there is
reasonable connection between particular
activity performed by the employee in relation
to the usual business or trade of the employer.
If usually necessary or desirable in the usual
business or trade of the employer, the
employment is deemed regular employment
(De Leon v. NLRC, G.R. No. 70705, August 21,
1989).
Note: Whether the work undertaken by the
employee is necessary or desirable can be
determined by looking at the services rendered
and its relation to the general scheme under
which the business or trade is pursued in the
usual course.
b. Period of Service Test – whether or not the
employee has rendered at least one year of
service. An employee, who is allowed to work
for at least one year, whether the same is
continuous or broken, shall be considered
regular employee.
c. Probationary Employment Test – whether or
not the employee is allowed to work after the
lapse of the probationary period. An employee
who is allowed to work after the lapse of the
probationary period shall be considered a
regular employee.
Casual Employment
There is casual employment where an employee is
engaged to perform activities which are not
necessary or desirable in the usual trade or business
of the employer.
a. The status of regular employment attaches to
the casual employee who has rendered at least
one (1) year of service, whether such service is
continuous or broken, with respect to the
activity in which he is employed and his
employment shall continue while such activity
exists.
b. A casual employee is only casual for one year,
and it is the passage of time that gives him a
regular status (KASAMMA-CCO v. CA, G.R. No.
159828, April 19, 2006).
Purpose: To give meaning to the constitutional
guarantees of security of tenure and right to
self-organization (Mercado v. NLRC, G.R. No.
79869, September 5, 1991).
Project Employment
A project employee is one whose employment has
been fixed for a specific project or undertaking, the
completion or termination of which has been
determined at the time of engagement of the
employee.
Where the employment of project employees is
extended long after the supposed project has been
finished, the employees are removed from the
scope of project employees and considered regular
employees (Tomas Lao Construction v. NLRC, G.R.
No. 116781, 5 September 1997).
Indicators of Project Employment
Either one or more of the following circumstances,
among others, may be considered as indicators that
an employee is a project employee:
a. The duration of the specific/identified
undertaking for which the worker is engaged is
reasonably determinable;
b. Such duration, as well as the specific
work/service to be performed, is defined in an
employment agreement and is made clear to
the employee at the time of hiring;
c. The work/service performed by the employee is
in connection with the particular
project/undertaking for which he is engaged;
d. The employee, while not employed and
awaiting engagement, is free to offer his
services to any other employer;
e. The termination of his employment in the
particular project/undertaking is reported to
 the DOLE Regional Office having jurisdiction
over the workplace within thirty (30) days
following the date of his separation from work,
using the prescribed form on employees’
terminations/ dismissals/ suspensions;
f. An undertaking in the employment contract by
the employer to pay completion bonus to the
project employee as practiced by most
construction companies (D.O. No. 19).
Seasonal Employment
Seasonal employment is an employment
arrangement where an employee is engaged to
work during a particular season on an activity that
is usually necessary or desirable in the usual
business or trade of the employer.
During off-season, the relationship of employer and
employee is not severed; the seasonal employee is
merely considered on leave of absence without pay.
Temporary or Fixed-Period Employment
A fixed-period employment is an employment
arrangement where an employee is engaged to
work on a specific project or undertaking which is
usually necessary or desirable in the usual business
or trade of the employer, the completion of which
has been determined at the time of the
engagement of the employee.
A fixed–period employee does not become a
regular employee because his employment is co–
terminus with a specific period of time.
Reason for validity of fixed-period employment:
Freedom of parties to contract so long as the
stipulations thereof are not contrary to law, morals,
good customs, public order and public policy.
Probationary Employment exists where the
employee, upon his engagement is made to
undergo a trial period during which the employer
determines his fitness to qualify for regular
employment based on reasonable standards made
known to him at the time of his engagement.
Note: In all cases probationary employment, the
employer shall make known to the employee the
standards under which he will qualify as a regular
employee at the time of his engagement. Where no
standards are made known to the employee at that
time, he should be regarded as a regular employee
(Section 6(d), Rule I, Book VI of the Implementing
Rules of the Labor Code).
57. Requirements for a valid project employment
a. Specific project phase thereof stated in the
employment contract;
b. Estimated date of completion of project or
phase thereof likewise stated in the contract;
c. Employee must have been dismissed every after
completion of his project or. phase (gaps must
be shown in his length of service); and
d. There must be a report to the DOLE of his
dismissal on account of completion of contract
(Policy Instruction 20 and DO 19 (1997))
58. Can there be a regular project employee?
General Rule: No. A regular employee cannot be at
the same time a project employee. (Magcalas v.
NLRC, GR No. 100333, March 13, 1997)
Exception: Where the employment of project
employees is extended long after the supposed
project has been finished, the employees are
removed from the scope of project employees and
are considered as regular employees. (Tomas Lao
Construction v. NLRC, G.R. No. 116781, 5 September
1997)
A project employee becomes a regular employee
when:
a. There is a continuous rehiring of project
employees even after the cessation of a project
for the same tasks or nature of tasks (the
employee must be continuously rehired without
gaps and intervals); and
b. The tasks performed by the alleged project
employee are vital, necessary and indispensable
to the usual business or trade of the employer
(Maraguinot v. NLRC, G.R. No. 120969, January
22, 1998).
Principal Test to Determine Whether Employees
Are ‘Project Employees’ As Distinguished From
‘Regular Employees’:
Whether or not the project employees are assigned
to carry out a specific project or undertaking the
duration or scope of which are specified at the time
the employees are engaged for that project (ALU-
TUCP v. NLRC, et al., G.R. No. 109902, August 2,
1994).
Project Employment Regular Employment
The services of project Regular employees
employees are enjoy security of
coterminous with tenure and are legally
project or any phase entitled to remain in
thereof and may be the service of their
terminated upon the employer and to hold
end or completion of on their work or
the [project or phase position until their
 thereof for which they services are
were hired. terminated by any of
the modes of
termination of service
recognized under the
Labor Code.
As to termination, due If termination is for
process is complied just cause, due process
with even if no prior applicable to Article
notice of termination 297 terminations
is served applies. If due to
authorized cause, due
process applicable to 62. Casual v. Regular employee- distinctions as to the
Article 298 and 299
terminations should be
followed.
59. Can there be a regular seasonal employee?
A “part-time worker” is an employed person whose
normal hours of work is less than those of
comparable full-time workers.
Part-time work may take different forms depending
on the agreed hours of work in a day, the days of
work in a week or other reference periods. In the
Philippines, however, the two most common and
acceptable forms are four (4) hours work per day
and weekend work or two (2) full days per week.
benefits
Casual employees are only entitled to receive 13th
month pay and if there are company benefits which
applies to them.

Yes. Seasonal employees considered as regular
employees when:
a. There is a reasonable connection between the
particular activity performed by the employees
in relation to the usual trade or business of the
employer; and
b. Seasonal workers are repeatedly engaged to
perform the same tasks more than once
(Zamudio vs NLRC; Universal Robina Sugar
Milling Corp., v. Acibo, G.R. No. 186439, January
15, 2014)
Regular employees, on the other hand, in addition
to those provided under the law are entitled to
receive Health Maintenance Organization (HMO)
benefits, leave benefits, car allowance, clothing
allowance and other company initiated benefits.
63. Casual employees- do they enjoy security of
tenure
YES, Casual employees enjoy a security of tenure
and may not be dismissed except for cause.

Note: One-year duration on the job is pertinent in 64. Probationary employee

deciding whether a casual employee has become
regular or not, but it is not pertinent to a seasonal
or project employee. Passage of time does not
make a seasonal worker regular or permanent
(Mercado v. NLRC, G.R. No. 79869, September 5,
1991).
65. What is the period of probationary employment?
When the business establishment is sold which
effectively terminates the employment of the
seasonal employees, the latter would be entitled to
separation pay.
Probationary employee is one who is under
observation by an employer to determine whether
or not he is qualified for permanent employment
(Azucena, p. 768).
General Rule: Probationary employment shall NOT
exceed six (6) months from the date the employee
started working.

60. Can there be a regular part-time employee Exceptions:

Yes. Part-time employees may be regular despite
rendering less than 8 hours of work a day. That [the
employees] worked only on a part-time basis does
not mean that he is not a regular employee. Ones
regularity of employment is not determined by the
number of hours one works but by the nature and
by the length of time one has been in that particular
job. (Perpetual Help Cooperative, Inc. vs Faburada
GR No. 121948, Oct 8, 2001)
a. When it is covered by an apprenticeship
agreement stipulating a longer period;
b. When the parties to an employment contract
agree otherwise;
c. When the same is established by company
policy; and
d. When the same is required by the nature of the
work performed by the employee.
66. How to compute the 6-month period

61. Who is a part-time employee?

 The computation of the 6-month probationary
period is reckoned from the date of appointment up
to the same calendar date of the 6th month
following (Alcira v. NLRC, G.R. No. 149859, June 9,
2004)

67. Can the 6-month period be extended? - Yes.

Generally, probationary employment shall not

exceed 6 months from the date the employee
started working.

The exceptions are:

a. When it is covered by an apprenticeship
agreement stipulating a longer period (Art. 296)
b. When the parties to an employment contract
agree otherwise;
c. When the same is established by company
policy; and
d. When the same is required by the nature of the
work performed by the employee.
 Post-Employment; Termination
68. Just causes of dismissal by employer- define each
and give the elements of each
Just Causes of Dismissal:
Serious Misconduct
Misconduct has been defined as the transgression
of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in
character, and implies wrongful intent and not
mere error in judgment (Dept. of Labor Manual,
Sec. 4343.01).
Requisites:
a. The misconduct must be serious i.e. of such a
grave and aggravated character;
b. It must relate to the performance of the
employee’s duties;
c. It must show that the employee has become
unfit to continue working for the employer; and
d. It must have been performed with wrongful
intent (Imasen Philippine Manufacturing
Corporation v. Alcon, G.R. No. 194884, October
22, 2014).
Examples:
a. Sexual harassment;
b. Fighting within company premises;
c. Uttering obscene, insulting or offensive words
against a superior;
d. Falsification of time records;
e. Gross immorality; and
f. Sexual intercourse inside company premises
and during work hours (Imasen Philippine
Manufacturing Corporation v. Alcon, G.R. No.
194884, October 22, 2014).
g. Theft of company-owned property
Willful Disobedience or Insubordination
Requisites:
a. The employee’s assailed conduct has been
willful or intentional, the willfulness being
characterized by a “wrongful and perverse
attitude”; and
b. The order violated must have been:
i. Reasonable and lawful;
ii. Made known to the employee; and
iii. In connection to the duties which he had
been engaged to discharge (Acesite
Corporation, v. NLRC, G.R. No. 152308,
January 26, 2005)
Examples:
a. Failure to answer memo to explain constitutes
willful obediuence. Note: Another notice is
required in case of termination on the gorund of
failure to answer memo to explain (Ace
Promotion and Marketing Corp. v. Ursabia, GR
No. 171703, September 22, 2006.
b. Refusal to undergo random drug testing
constitutes both serious misconduct and
insubordination (Kakampi and its members v.
Kingsport Express and Logistic, GR No. 194813,
April 25, 2012).
c. Refusal to render overtime to meet production
deadline (R.B. Michael Press v. Galit, GR. No.
153510, February 13, 2008)
Gross and Habitual Neglect of Duties
In order to constitute a just cause for the
employee’s dismissal, the neglect of duties must
not only be gross but also habitual and work-
related.
a. Gross neglect means an absence of that
diligence that an ordinarily prudent man would
use in his own affairs (Department of Labor
Manual, Sec. 4343.01[27]).
b. Habitual neglect implies repeated failure to
perform one’s duties over a period of time,
depending upon the circumstances (JGB and
Associates, Inc. v. NLRC, G.R. No. 109390, March
7, 1996).
Note: The SC concluded that respondent had been
grossly negligent. Notably, respondent’s
negligence, although gross, was not habitual. In
view of the considerable resultant damage,
however, the SC agreed that the cause is sufficient
to dismiss respondent. Indeed, the sufficiency of
the evidence as well as the resultant damage to the
employer should be considered in the dismissal of
the employee. In this case, the damage went as far
as claiming the life of a child (School of Holy Spirit v.
Taguim, G.R. No. 165565. July 14, 2008).
Actual damage, loss or injury is not an essential
requisite (Department of Labor Manual, Sec.
4343.01[2])
Forms of Neglect of Duty
a. Habitual tardiness and absenteeism;
b. Abandonment of work
Requisites:
i. Failure to report for work or absence
without valid or justifiable reason; and
ii. Clear intention to sever Er-Ee relationship
being manifested by some overt acts (Labor
v. NLRC, G.R. No. 110388, September 14,
1995).
Fraud or Willful Breach of Trust
Fraud or dolo consists in the conscious and
intentional proposition to evade the normal
fulfillment of an obligation. Commission of fraud by
an employee against the employer will necessarily
result in the latter’s lost of trust and confidence in
the former.
Requisites for Fraud:
a. Fraud must be committed against the employer
or his representative; and
b. In Connection with the employee’s work
(Department of Labor Manual, Sec. 4353.01[3]).
(ex. Falsification of time card and Unauthorized
use of vehicle)
Willful Breach of Trust
Breach of trust or confidence must be willful. A
breach is willful if it is done intentionally, knowingly
and purposely, without justifiable excuse. The
breach must be work related and committed
against the employer or his representative.
Requisites for Willful Breach of Trust:
a. The employee holds a position of trust and
confidence
b. There exists an act justifying the loss of trust
and confidence which means that the act that
betrays the employer’s trust must be real
c. The employee’s breach of the trust must be
willful; and
d. The act must be in relation to his work which
would render him unfit to perform it.
Guidelines:
i. Loss of confidence should not be simulated
(reasonable basis for loss of trust and
confidence);
ii. Not used as a subterfuge for causes which
are improper, illegal or unjustified;
iii. Not arbitrarily asserted in the face of
overwhelming evidence to the contrary;
iv. Must be genuine, not a mere afterthought
to justify earlier action taken in bad faith;
and
v. The employee involved holds a position of
trust and confidence (China City Restaurant
Corporation v. NLRC, G.R. No. 97196,
January 22, 1993).
Two Classes of Positions of Trust
a. Managerial employees; and
b. Those who in the normal and routine exercise of
their functions, regularly handle significant
amounts of money or property (ex. cashiers,
auditors, property custodians, etc.).
Note: As to the degree of proof required, with
respect to rank-and –file personnel, it requires
proof of involvement in the alleged events in
question and that mere uncorroborated assertions
and accusations by the employer will not be
sufficient. But as regards a, managerial employee,
the mere existence of a basis for believing that he
has breached the trust of his employer would
suffice for his dismissal (Alcantara v. the Philippine
Commercial and Industrial bank, GR No. 151349,
Oct. 20, 2010).
There must be “some basis” for the loss of trust and
confidence which means that there is reasonable
ground to believe, if not to entertain the moral
conviction, that the concerned employee is
responsible for the misconduct and that the nature
of his participation therein rendered him absolutely
unworthy of trust and confidence demanded by his
position. (Central Pangasinan Electric Cooperative,
Inc. v. Macaraeg, GR No. 145800, Jan. 22, 2003)
Note: Generally, employers are allowed wider
latitude of discretion in terminating the
employment of managerial personnel or those
who, while not of similar rank, perform functions
which by their nature require the employer’s full
trust and confidence (Coca-Cola Bottlers Phils. Inc.
v. NLRC, G.R. No. 82580, April 25, 1989).
It is not the job title but the actual work that the
employee performs that determines whether he or
she occupies a position of trust and confidence
(Bluer Than Blue Joint Ventures Company/Mary Ann
dela Vega v. Glyza Esteban, G.R. No. 192582, April
7, 2014).
Commission of a Crime or offense
It refers to an offense by the employee against the
person of his employer or any immediate member
of his family or his duly authorized representative
and thus, the conviction of a crime involving moral
turpitude is not analogous thereto as the element
of relation to his work or to his employer is lacking.
Requisites:
a. A crime or offense was committed by the
employee;
Note: The conviction of an employee in a
criminal case is not necessary to warrant his
dismissal by his employer (National Labor
Union, Inc. v. Standard Vacuum Oil Company,
G.R. No. L-48170, October 10, 1941).
b. It was committed against any of the following
persons:
i. His employer
ii. Any immediate member of his employer’s
family;
Note: The phrase “immediate members of
family” refers to those persons having
family relations under Article 150 of the
Family Code, to wit:
 Between husband and wife
 Between parents and children
 Among other ascendants and
descendants
 Among brothers and sisters, whether
of the full or half-blood.
iii. His employer’s duly authorized
representative.
Analogous Causes
It must be due to the voluntary and/or willful act or
omission of the employee (Nadura v. Benguet
Consolidated, G.R. No. L-17780, August 24, 1962).
Examples:
a. Violation of company rules and regulations;
b. Drunkenness;
c. Gross inefficiency- analogous to gross neglect of
duty (ex. failure to meet sales quota based on a
valid productivity standard); and
d. Illegally diverting employer’s products
e. Theft of property of co-employee
Other Just Causes Recognized under Other
provisions of the Labor Code:
a. Union officers who knowingly participate in an
illegal strike;
b. Any employee, union officer or mere member
who knowingly participates in the commission
of illegal acts during a strike;
c. Strikers who violate orders, prohibitions and/or
injunctions as are issued by the Secretary of
Labor and Employment or the NLRC; and
d. Violation of union security clause stipulated in
the CBA pursuant to Art 248[e].
69. Professors who are married and having an
affair- serious misconduct? Or analagous
causes?
According to the Supreme Court in the case of
Santos Jr., vs. NLRC and Hagonoy Institute, the
affair is immoral. A teacher, both in his
personal and official conduct, must display
exemplary behaviour when a teacher engages
in extra-marital relations, especially when the
parties are married such behaviour amounts to
immorality, justifying dismissal from
employment.
70. Clerk who gets pregnant out of wedlock-
serious misconduct?
It is not serious misconduct nor immoral
conduct which would justify dismissal. Getting
pregnant prior to marriage does not equate to
immorality. Under our rules, the immoral
conduct or misconduct contemplated is one
that must be gross. It must not only be an act
showing indifference to the opinion on the
good and respectable members of the society
but one that constitutes a criminal act or one
so unprincipled as to be reprehensible as to a
high degree or committed under scandalous
circumstances. Getting pregnant out of
wedlock is indeed neither one those
mentioned.
71. Leus v. St. Scho
In this case entitled Cheryll Leus vs St.
Scholastica's College Westgrove, Cheryll Santos
Leus was hired by St. Scholastica’s College
Westgrove (SSCW) as an Assistant to SSCW’s
Director of the Lay Apostolate and Community
Outreach Directorate on May 2001. Sometime
in 2003, the petitioner and her boyfriend
conceived a child out of wedlock. When SSCW
learned of the petitioner’s pregnancy, Sr. Edna
Quiambao (Sr. Quiambao), SSCW’s Directress,
advised her to file a resignation letter effective
June 1, 2003. In response, the petitioner
informed Sr. Quiambao that she would not
resign from her employment just because she
got pregnant without the benefit of marriage.
On May 28, 2003, Sr. Quiambao formally
directed the petitioner to explain in writing
why she should not be dismissed for engaging
in pre-marital sexual relations and getting
pregnant as a result thereof, which amounts to
serious misconduct and conduct unbecoming
of an employee of a Catholic school.
Cheryll replied stating that her pregnancy
outside of wedlock does not amount to serious
misconduct. She thereafter requested a copy
of SSCW’s policy so that she can better respond
to the charge against her. SSCW did not a have
these guidelines as the guidelines handbook
was currently pending of its promulgation. It
instead stated that they follow the 1992
Manual of Regulations for Private School (1992
MRPS), specifically, Sec.94, which cites
 “disgraceful or immoral conduct" as a ground
for dismissal, in addition to the just causes for
termination of employment under Art.282,
Labor Code.
The Labor Arbiter in Quezon City decided in
favor of SSCW, stating that Cheryll being
pregnant out of wedlock is considered
“disgraceful and immoral conduct” taking into
account that she was employed in a Catholic
institution which expect its employees to live
up to the Catholic values it teaches to the
students. The NLRC affirmed the decision of
the Labor Arbiter.
Issue: Cheryll’s pregnancy out of wedlock
constitutes a valid ground to terminate her
employment?
The Ruling of the Supreme Court.
The Supreme Court held that Cheryll was
illegally dismissed by her employer. Her
pregnancy out of wedlock does not constitute
a valid ground to terminate her employment.
Disgraceful conduct is viewed in two ways, the
“public and secular view” and “religious view”.
Our laws concern the first view. Disgraceful
conduct per se will not amount to violation of
the law – the conduct must affect or poses a
danger to the conditions of society, for
example, the sanctity of marriage, right to
privacy and the like. (the Court cited Estrada vs.
Escritur in the said case)
Furthermore, there was no substantial
evidence to prove that Cheryll’s pregnancy out
of wedlock caused grave scandal to SSCW and
its students. Mere allegation of such will not
render a judgment in favor of the one making
the allegation. It is the burden of the employer
to prove by substantial evidence that the
termination of the employment of the
employee was made and failure to discharge
that duty would mean that the dismissal is not
justified and therefore illegal.
The Court ordered SSCW to reinstate Cheryll.
But because this is not possible anymore due
to constrained relations with SSCW, the Court
ordered the employer to pay Cheryll
separation pay, full backwages and attorney’s
fees.
72. Constructive dismissal
a. There may be constructive dismissal if an act of
clear discrimination, insensibility or disdain by
an employer becomes so unbearable on the
part of the employee that it could foreclose any
choice by him except to forego his continued
employment
b. There is demotion in rank/diminution of pay
c. A floating status of a security guard for more
than 6 months constitutes constructive
dismissal
d. Beyond the 30-day period of preventive
suspension without the employee being
reinstated to his former position
Test of constructive dismissal: W/N a reasonable
person in the employee's position would have felt
compelled to give up his position under the
circumstances
73. Resignation
Resignation is the voluntary act of the employees
who are compelled by personal reasons to
dissociate themselves from their employment. It
must be done with:
a. Intention of relinquishing an office; and
b. Accompanied by the act of abandonment.
74. Sexual harassment
Sexual harassment refers to Demands, requests or
otherwise requires any sexual favor from the other
regardless of whether the demand, request or
requirement for submission is accepted by the
object of the said act. (RA 7877)
75. Redundancy
Redundancy exists where the service of an
employee is in excess of what is reasonably
demanded by the actual requirements of the
enterprise.
76. Retrenchment
Retrenchment (Downsizing)
a. Reduction of personnel usually due to poor
financial returns so as to cut down on costs of
operations in terms of salaries and wages to
prevent bankruptcy of the company; and
b. Linked with losses, it is cost-cutting measure
made immediately necessary by business
reduction or reverses
Retrenchment Redundancy
Employer reduces the When for purposes of
number of its economy a company
 personnel in order to decides to reorganize
prevent further losses its departments by
in his business imposing on
operations. employees of one
department the
duties performed by
the employees of the
other department,
thus rendering
unnecessary the job
of the latter, the
services of the
employees whose
functions are now
being performed by
the former, may be
validly terminated on 78. When can the employer terminate the services of
The ground of
redundancy.
Retrenchment is an act Does not need to be
of the employer of always triggered by a
dismissing employees decline in the
because of losses in business. Thus, even
the operation of a if a business is doing
business, lack of work, well, an employer can
and considerable still validly dismiss an
reduction on the employee from the
volume of his business. service due to
redundancy if that
employee’s position
has already become
in excess of what the
employer’s
enterprise requires.
c. The employer pays the retrenched employees
separation pay equivalent to one month pay or
at least one-half month pay for every year of
service;
d. The employer exercises its prerogative to
retrench employees in good faith for the
advancement of its interest and not to defeat or
circumvent the employees’ right to security of
tenure;
b. The employer used fair and reasonable criteria
in ascertaining who would be dismissed and
who would be retained among the employees,
such as status, efficiency, seniority, physical
fitness, age, and financial hardship for certain
workers.
the employee on the ground of disease or ailment
Where the employee suffers from a disease and his
continued employment is prohibited by law or
prejudicial to his health or to the health of his co-
employees, the employer shall not terminate his
employment unless there is a certification by a
competent public health security that the disease is
of such nature or at such stage that it cannot be
cured within a proper period of 6 months even with
proper medical treatment (Sec. 8, Rule I, Book VI,
IRR of LC).

77. Requisites for valid retrenchment

Basic requisites
a. The retrenchment is necessary to prevent or
minimize losses and such losses are proven;
b. Written notice is given to the employees and
the DOLE at least one month before the
intended date of retrenchment;
c. Separation pay is paid (Azucena, pp. 841-842).

Lifted from Memaid

a. Retrenchment is reasonably necessary and
likely to prevent business losses, which if
already incurred, are not merely de minimis, but
substantial, serious, actual, and real, or if only
expected, are reasonably imminent as
perceived objectively and in good faith by the
employer;
b. The employer served written notice both to the
employees and to the DOLE at least one-month
prior the intended date of retrenchment;