Conditions for a Valid Exercise of the
Assumption of Jurisdiction Authority
1. Both parties have requested the Secretary of
Labor to assume jurisdiction over the labor
dispute; or
2. After a conference called by the Secretary of
Labor on the propriety of the issuance of the
Assumption or Certification order, motu
proprio or upon request or petition by either
party to the labor dispute.
The Secretary of Labor may either:
1. Assume Jurisdiction and decide it, or
2. Certify the same to the NLRC for Compulsory
Arbitration.
Note: A labor dispute may be assumed by the
Secretary or certifies to the NLRC even before the
actual staging of a strike or a lockout since Article
263 of the LC does not require the existence of the
strike but only of a labor dispute involving national
interest. What constitute “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
opinion are indispensable to the national interest.
Industries Indispensable to the National Interest
(According to Jurisprudence)
1. Hospital Sector
2. Electric power supply
3. Water supply, to exclude small water supply
services such as bottling and refilling stations
4. Air traffic control; and
5. Such other sectors as may be recommended
by the National Tripartite Industrial Peace
Council (TIPC)
Effects of Assumption of Jurisdiction of the
Secretary
1. Automatically enjoins the intended or
impending strike or lockout as specified in
the assumption or certification order;
2. If one has already taken place at the time of
assumption or certification all striking or
locked out employees shall within 24 hours
return to work from receipt of an assumption
or certification order; and
3. The employer shall immediately resume
operations and re-admit all workers under
the same terms and conditions prevailing
before the strike or lockout.
NOTE: A Motion for Reconsideration (MR) does not
suspend the assumption order is immediately
executory.
BAR Q and A
Q: A is a member of the labor union duly
recognized as the sole bargaining representative
of his company. Due to a bargaining deadlock,
245 members of the 500 strong union voted on
March 13, 2010 to stage a strike. A notice of
strike was submitted to the NCMB on March 16,
2010. Seven days (7) later or on March 23, 2010,
the workers staged a strike in the course of
which A had to leave and go to the hospital
where his wife had just delivered a baby. The
union members later intimidated and barred
other employees from entering the work
premises, thus paralyzing the business
operations of the company.
A was dismissed from employment as the
consequence of the strike.
A. Was a strike legal? Explain.
SUGGESTED ANSWER:
NO. The strike was not legal due to the
union’s failure to satisfy the required majority vote
of union membership (251), approving the conduct
of a strike.
Also, the strike was illegal due to the non-
observance of the 30-day cooling off period by the
union (Art. 263(c))
Q: On the first day of CB negotiation between
rank and file Union A and B Bus Company, the
former proposed a P45/day increase. The
company insisted that ground rules for
negotiation should first be established, to which
the union agreed. After agreeing on ground rules
their proposals for a wage increase. When
company representation suggested a discussion
of political provisions in the CBA as stipulated in
the ground rules, union members went on mass
leave for the next day to participate in a whole
day prayer rally in front of the company building.
A. The company filed a petition for assumption
of jurisdiction with the Secretary of Labor
 and Employment. The Union opposed the
petition, arguing that it did not intend to
stage a strike. Should the petition be
granted? Explain.
SUGGESTED ANSWER
YES. There was a strike. What the union
engaged in was actually a “work stoppage” in the
guise of a protest rally.
Article 212 (o) of the LC defines strike as a
temporary stoppage of work by the concerted action
of employees as a result of an industrial or labor
dispute. The facts that the conventional term
“strike” was not used by the striking employees to
described their common course of action is
inconsequential. What is controlling is the
substance of the situation, and not its appearance.
The term “strike” encompasses not only
concerted work stoppages, but also slowdowns,
mass leaves, sit downs, attempts to damage, destroy
or sabotage plant equipment and facilities, and
similar activities.
Q: Discuss the Legal Requirements of a Valid
Strike
1. Valid and factual ground
2. Notice of strike filed by the Bargaining agent (if
collective bargaining deadlock) or a registered
union in the affected bargaining unit (if unfair
labor practice)
3. Notice of strike wiled with the NCMB
4. Notice of strike filled at least 24 hours prior to
taking a strike vote by secret balloting,
informing said office of the decision to conduct a
strike vote, and the date, place and time thereof,
5. Strike vote where majority of union member
approve the strike
6. Strike vote report should be submitted to the
NCMB at least 7 days before the intended date
of strike
7. Except in cases of union busting, the cooling off
period prescribed (15 days, ULP; 30 days; CB
deadlock) should be fully observed
8. 7-day waiting period or strike bans after
submission of strike vote report to NCMB should
be fully observed
9. Not on grounds of ULP in violation of no-strike
clause in CBA
10. Not visited with widespread violence
11. Not in defiance of the secretary’s assumption of
jurisdiction order;
12. Not prohibited by law (such as union in a
banking company)
Q: A runaway shop is an act constituting ULP
SUGGESTED ANSWER:
False, a runaway shop is not automatically
an unfair labor practice. It is an unfair labor practice
if the relocation that brought about the runaway
shop is motivated by anti-union animus rather than
for business reasons.
ALTERNATIVE ANSWER:
True, the transfer of location of a strike
bound establishment to another location (run-away
shop) can constitute an act of interference or
restraint of the employees’ right to self-organization.
There is an inferred anti-union bias of the employer
(Labor Code, Art. 248[a]). The provisions of Art.
248[a] should be broadly and literally interpreted to
achieve the policy objective of the law, i.e., to
enhance the workers right to self-organization and
collective bargain (Constitution, Art. XIII, Sec. 3 &
Art.III, Sec. 8; labor Code, Arts., 243, 244 & 245;
Caltex Filipino Managers, etc. v. CIR, 44 SCRA 350
[1972]).
Q: Several employees and members of Union A
were terminated by Western Phone Co. on the
ground of redundancy. After complying with the
necessary requirements, the Union staged a
strike and picketed the premises of the
company. The management then filed a petition
for the Secretary of Labor and Employment to
assume jurisdiction over the dispute. Without
the benefit of a hearing, the Secretary issued an
Order to assume jurisdiction and for the parties
to revert to the status quo ante litem.
Was the order to assume jurisdiction
legal? Explain. (2%)
SUGGESTED ANSWER:
Yes, the Secretary of Labor and Employment
has plenary power to assume jurisdiction under
Article 263(g) of the Labor Code. When in his
opinion, there exists a labor dispute causing or
likely to cause a strike or lockout in an industry
indispensable to the national interest, the Secretary
of Labor may assume jurisdiction over the dispute
and decide it or certify it to the NLRC for compulsory
arbitration (Art. 263[g], Labor Code). This
extraordinary authority given to the Secretary of
Labor is aimed at arriving at a peaceful and speedy
solution to labor disputes, without jeopardizing
national interests (Steel Corporation v. SCP
Employees Union, 551 SCRA 594 [2008]). Such
assumption shall have the effect of automatic
enjoining an impending strike or lockout, or an
order directing immediate return to work and
resume operations, if a strike already took place,
and for the employer to re-admit all employees
under the same terms and conditions prevailing
before the strike or lockout (Art. 263(g), Labor Code;
Sec. 15, Rule XXII, Dept. Order No. 40-G-03).
Q: Johnny is the duly elected President and
principal union organizer of the Nagkakaisang
Manggagawa ng Manila Restaurant (NMMR), a
legitimate labor organization. He was
unceremoniously dismissed by management for
spending virtually 95% of his working hours in
union activities. On the same day Johnny
received the notice of termination, the labor
union went on strike.
Management filed an action to declare the
strike illegal, contending that:
(a) The union did not observe the "cooling-off
period" mandated by the Labor Code; (2%)
SUGGESTED ANSWER:
Yes, the conduct of a strike action without
observing the cooling-off period is a violation of one
of the requirements of law which must be observed.
The cooling-off periods required by Article 263(c)
and 263(f) of the Labor Code are to enable the DOLE
to exert effort to amicably settle the controversy, and
for the parties to review and reconsider their
respective positions during the cooling-off periods.
But the Labor Code also provides that if the
dismissal constitutes union busting, the union may
strike immediately.
(b) The union went on strike without complying
with the strike-vote requirement under the
LC. (2%)
Rule on the foregoing contention with reasons.
SUGGESTED ANSWER:
The Conduct of the strike action without a
strike vote violates Article 263 (f) “In every case, the
union or the employer shall furnish the DOLE the
results of the voting at least seven days (7) before
the intended strike…” to enable the DOLE and the
parties to exert the least effort to settle the disputes
without strike action.
Q: Some officers and rank-and-file members of
the union staged an illegal strike. Their
employer wants all the strikers dismissed. As the
lawyer, what will you advise the employer?
Discuss fully. (5%)
SUGGESTED ANSWER:
I will advise the employer that not all the
strikers can be dismissed. Any union officers who
knowingly participates in an illegal strike maybe
declared to have lost his employment status but a
worker who is not a union officer may be declared to
have also lost his employment status only if he
commits illegal acts during a strike (CCBPI Postmix
Workers Union v. NLRC, 299 SCRA 410 [1998]).
Q: As a result of bargaining deadlock between
ROSE Corporation and ROSE Employees Union,
its members staged a strike. During the strike,
several employees committed illegal acts. The
company refused to give in to the union's
demands.
Eventually, its members informed the company
of their intention to return to work. (10%)
1. Can ROSE Corporation refuse to admit all
the strikers?
SUGGESTED ANSWER:
Article 264 of the Labor Code provides that
“mere participation of a worker in a lawful
strike shall not constitute sufficient ground for
termination of employment even if a
replacement had been hired by the employer
during such lawful strike.”
On the other hand, the same Article of the
Labor Code provides, “Any worker or union officer
who knowingly participates in the commission
of illegal acts during a strike may be declared
a to have lost his employment status.”
Because of the above quoted provisions of
the Labor Code, ROSE Corporation cannot refuse to
admit all the strikers who inform the company of
their intention to return to work except those
workers who may have committed illegal acts during
the strike who can be declared as having lost their r
employment status.”
Q: Which of the following may be considered
among industries most vital to national interest
as to be the subject of immediate assumption of
jurisdiction by the Secretary of Labor and
Employment or certification for compulsory
arbitration in case of strike or work stoppage
arising from a labor dispute?
(1) Bulletin daily newspaper publishing company.
(2) Local franchise of Jollibee and Starbucks.
(3) Shipping and port services in Cebu and
Manila.
(4) Enchanted Kingdom, Elephant Island and
Boracay Resort.
(5) LBC, DHL and FedEx centers.
Justify your answer or choice. (5%)
SUGGESTED ANSWER:
Certification of labor dispute for immediate
assumption of jurisdiction by the Secretary of the
Department of Labor and Employment, as
indispensable to national interest. (Art. 263 [g],
Labor Code).
1. Bulletin Daily Newspaper. Access to information,
e.g., local, foreign, or otherwise are requirements for
an informed citizenry.
2. Shipping and port services in Cebu and Manila.
The country needs domestic sea transport due to
our topography and for the smooth flow of business
and government operations.
3. LBC, DHL, FEDEx Centers. Couriers are
essential to foreign and domestic business and
government operations.
Q: Employees of ABC declared a strike after filing
a Notice of Strike with the DOLE. They
barricaded company gates and damaged vehicles
entering company premises. On the second day
of the strike, ABC filed a petition with the DOLE
Secretary to intervene through the issuance of
an assumption of jurisdiction order that the
Secretary may issue when a strike or lock-out
will adversely affect national interest. ABC
furnished the Secretary with evidence to show
that company vehicles had been damaged; that
electric power had been cut off; and equipment
and materials were damaged because electric
power was not immediately restored. ABC
forecast that the
country’s supply of chlorine for water treatment
(which the company produces) would be affected
adversely if ABC’s operations were closed down
by the strikers.
Could the DOLE Secretary intervene, assume
jurisdiction and issue a TRO (Temporary
Restraining Order)? Briefly justify your answer.
(5%)
SUGGESTED ANSWER
Yes, the Secretary of Labor and Employment
can assume jurisdiction over the dispute because
ABC could be considered as an industry
indispensable to the national interest since it
produces the country’s supply of chlorine for water
treatment.
The assumption of jurisdiction of the
Secretary of Labor and Employment has the effect of
ending the strike. The strikers will be subject to a
return to work order by the Secretary of Labor and
Employment upon her assumption of jurisdiction.
Q: Eaglestar Company required a 24-hour
operation and embodied this requirement in the
employment contracts of its employees. The
employees agreed to work on Sundays and
Holidays if their work schedule required them to
do so for which they would be paid additional
compensation as provided by law. Last March
2000, the union filed a notice of strike. Upon
Eaglestar's petition, the Secretary of Labor
certified the labor dispute to the NLRC for
compulsory arbitration. On April 20, 2000
(Maundy Thursday), while conciliation meetings
were pending, the union officers and members
who were supposed to be on duty did not report
for work. Neither did they report for work on
April 21 (Good Friday) and on April 22 (Black
Saturday), disrupting the factory's operations
and causing it huge losses. The union denied it
had gone on a strike because the days when its
officers and members were absent from work
were legal holidays. Is the contention of the
union correct? Explain briefly. (5%)
SUGGESTED ANSWER:
The contention of the union is NOT correct.
In the case, it is clear that the employees
agreed to work on Sundays and Holidays if their
work schedule required them to do so for which they
would be paid additional compensation as provided
by law.
The above-mentioned agreement that the
employees voluntarily entered into is valid. It is not
contrary to law. It is provided in the agreement that
if they will work Sundays or Holidays that they will
be paid additional compensation as provided by law.
Neither is the agreement contrary to morals, good
customs, public order or public policy.
Thus, when the workers did not report for
work when by agreement they were supposed to be
on duty, there was a temporary stoppage of work by
the concerted action of the employees as a result of
an Industrial or labor dispute because they were on
strike. [See Interphil Laboratories Employees Union-
FFW v. Interphil Laboratories Inc., GR No. 142824,
December 19, 2001}
Q: The Secretary of Labor and Employment, after
assumption of jurisdiction over a labor dispute
in an airline issued a Return to Work Order. The
airline filed a Motion for Reconsideration of the
Order and pending resolution of the motion,
deferred the implementation of the Order. Can
the airline defer the implementation of the
Return to Work Order pending resolution of the
motion for reconsideration? [5%]
SUGGESTED ANSWER:
The airline cannot defer the implementation
of the Return to Work Order on the basis of there
being a pending Motion for Reconsideration re: the
assumption of jurisdiction by the Secretary of Labor
and Employment of a labor dispute.
According to the Supreme Court, the Return
to Work Order issued by the Secretary of Labor and
Employment upon his assumption of jurisdiction
over a labor dispute in an industry indispensable for
the national interest is immediately executory.
Q: The Secretary of Labor and Employment, after
receipt of a Notice to Terminate Employment of
one hundred (100) workers, enjoined the
employer from implementing their termination.
Has the Secretary of Labor and Employment the
authority to enjoin the employer from
terminating the employment of the workers? If
so, on what grounds? (5%)
SUGGESTED ANSWER:
The Secretary of Labor and Employment has
the authority to enjoin an employer from
terminating the employment of workers. The Labor
Code (in Article 377(b) provides that the Secretary of
Labor and Employment may suspend the effectivity
of the termination of workers pending the resolution
of a labor dispute in the event of a prima facie
finding of an appropriate official of the Department
of Labor and Employment before whom such
dispute is pending that the termination may cause
a serious labor dispute or is in implementation of a
mass lay off.
Q: A labor union lawyer opined V. that a labor
organization is a private and voluntary
organization; hence, a union can deny
membership to any and all applicants.
Is the opinion of counsel in accord with
law? [5%]
SUGGESTED ANSWER:
NO, the opinion of counsel is not in accord
with law. The Labor Code (in Article 249 (a and b)
provides that a labor organization has the right to
prescribe its own rules for the acquisition or
retention of membership, but it is an unfair labor
practice act for a labor organization to restrain or
coerce employees in the exercise of their right to self-
organization.
Thus, a labor organization cannot
discriminate against any employee by denying such
employee membership in the labor organization on
any ground other than the usual terms and
conditions under which membership or
continuation of union membership is made
available to other members.

ANOTHER SUGGESTED ANSWER:
Yes, the legal opinion of counsel, on the
nature of a labor union and its admission policy is
in accord with law, but must be qualified. The
Supreme Court ruled in Salunga v. CIR, 21 SCRA
216 (1967) as follows: Generally, a state may not
compel ordinary voluntary association to admit
thereto any given individual, because membership
therein maybe accorded or withheld as a matter of
privilege. The same case further ruled that the law
can compel a labor union to admit an applicant for
membership when the union is - The rule is
qualified in respect of labor unions holding a
monopoly in the supply of labor, either in a given
locality or as regards a particular employer with
which it has a closed-shop agreement. The reason is
that [union security provisions] cause the admission
requirements of trade unions to be affected with
public interest.
Q: The day following thee worker’s voluntary
return to work the Company Production Manager
discovered an unusual and sharp drop in
worker’s output. It was evidently clear that the
workers are engaged in a work slowdown
activity.
Is the work slowdown as a valid form of
strike activity?
SUGGESTED ANSWER:
A work slowdown is not a valid form of strike
activity. If workers are to strike, there should be
temporary stoppage of work by the concerted
actions of the employees as a result of industrial or
labor dispute.
Q: What are the objectives of the Secretary of
Labor and Employment in certifying a labor
dispute to the NLRC for compulsory arbitration?
Explain.
SUGGESTED ANSWER:
The objectives of the Secretary of Labor and
Employment in certifying a labor dispute to the
NLRC for compulsory arbitration is to prevent a
work stoppage that may adversely affect the
national interest and to see to it that a labor dispute
is expeditiously settled.
2. Are the strikers in an illegal strike entitled to
reinstatement under the Labor Code?
Explain
SUGGESTED ANSWER:
No. Union officers and members who commit
illegal acts lose their employment status. Any union
officer who knowingly participates in an illegal
strike, and any worker or union return to work
order. The union defied the return to work order and
continued the strike. The company proceeded to
declare all those who participated in the strike as
having lost their employment status.
Q: Union A filed a Notice of Strike with the
National Conciliation and Mediation Board
(NCMB) of the Department of Labor and
Employment. Upon a motion to dismiss by the
Company on the ground that the acts
complained of in the notice of strike are non-
strikeable. The NCMB dismissed the Notice of
Strike but continued to mediate the issues
contained therein to prevent the escalation of
the dispute between the parties. While the NCMB
was conducting mediation proceedings, the
Union proceeded to conduct a strike vote as
provided for under the Labor Code. After
observance of the procedural processes required
under the Code, the Union declared a strike.
1. Is the strike legal?
2. Can the employer unilaterally declare those
who participated in the strike as having lost
their employment status?
3. What recourse do these employees (declared
by the employer to have lost their employment
status) have, if any?
SUGGESTED ANSWER:
1) NO. The strike is not legal. The Labor Code
provides that no labor organization shall declare a
strike without first having bargained collectively in
accordance with its Title VII of Book V, which in turn
provides that during conciliation proceedings at the
NCMB, the parties are prohibited from doing any act
that may disrupt or impede the early settlement of
the dispute. (Arts. 264(a), also250(d); Labor Code)
2) The employer may unilaterally declare
those who participated in the strike as having lost
their employment status but such unilateral
declaration does not necessarily mean that thereby
the strikers are legally dismissed. The strikers could
still file a case of illegal dismissal and prove, if they
can, that there was no just cause for their dismissal.
3) They could file a case of illegal dismissal.
The strikers who are union officers may contend
that the strike is not illegal. The strikers who are
mere union members may contend that they did not
commit any Illegal acts during the strike. (Art, 264,
Labor Code)
Q: Frelbourg Electronics Corporation which
employees 400 rank and file employees, 80
supervisors and 20 managerial personnel,
negotiated a CBA with the Moderno Labor Union
(MLU), the bargaining representative of the rank
and file employees, MLU after complying with
the legal requirements, declared a strike and
picketed the company’s gates. The picketers
obstructed the free ingress into the engrees from
the premises. Fearing that it might not meet its
commitments to European and American buyers,
the Company appealed to the ML to allow entry
of personnel who were willing to work, MLU
rejected the appeal. On the tenth day (10 th) of
the strike, a squad of policemen escorted the
managerial and supervisory personnel and 100
rank and file employees entering the Company’s
premises to work. During the entry, 20
supervisors and 50 rank and file employees were
beaten by the picketers.
The MLU charged the Company and the
policemen with violation of the anti-scab law
under the Labor Code. The Company, for its part
filed a petition to declare the strike and
picketing illegal.
As the Labor Arbiter, resolve MLU’s
charge and the Company’s petition, with reason.
SUGGESTED ANSWER:
The charge made by MLU that the company
and the policemen violated the anti-scab law under
the LC has no basis.
The code provides that no public official or
employee, including officers and personnel of the
New AFP and the Integrated National Police, or
armed personnel, 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 strikers. (Article 254
(d) Labor Code)
The company of the policemen did not violate
the above provision of the Labor Code when a squad
of policemen escorted the managerial and
supervisory personnel and 100 rank and file
employees in entering the Company’s premises to
work because the above personnel and employees
are old employees, not new employees who will
“replace” the strikers. . .
Four (4) kinds of Employees
1. Regular EE
2. Casual EE
3. Project EE
4. Seasonal EE
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 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 (6 months).
Test of Regularity
 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.
 Period of Service Test – WON the employee
has rendered at least 1 year of service. An
employee, who is allowed to work for at least
1 year, whether the same is continuous or
broken, shall be considered regular
employee. (Applicable to Casual Employees
only)
 Probationary Employment Test – WON 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
regular employee.
Q: A carpenter is employed by a private
university in Manila. Is the carpenter a regular
or a casual employee? Discuss fully. (5%)
SUGGESTED ANSWER:
If the employment of the carpenter is
sporadic and brief in nature or occasional, his
employment is casual especially because the work
he is performing is not in the usual course of the
school ‘s trade or business. However, if the
carpenter has rendered service at least one year,
whether continuous or broken, he becomes a
regular employee by operation of law, with respect
to the activity of which he is employed and his
employment shall continue while such activity
exists (Article 280, Labor Code; See also Philippine
Geothermal, Inc. v. NLRC, 189 SCRA 211 [1990];
Kimberly Independent Labor Union, etc. v. Drilon, 18
SCRA 190 [1990]).
Q: Design Consultants, Inc. was engaged by the
PNCC to supervise the construction of the South
Expressway Extension. Design Consultants, Inc.
hired Omar as a driver for two (2) years. After his
two-year contract expired, he was extended
another contract for nine (9) months. These
contracts were entered into during the various
stages and before the completion of the
extension project. Omar claims that because of
these repeated contracts, he is now a regular
employee of Design Consultants. Inc. Is he
correct? Explain briefly. (5%)
SUGGESTED ANSWER:
Yes. The principal test for determining
whether a particular employee is a "project
employee" as distinguished from a "regular
employee" is whether or not the "PROJECT
EMPLOYEE" was assigned to carry out a "specific
project or undertaking," the duration and scope of
which were specified at the time the employee was
engaged for the projects.
In the problem given, there is no showing
that Omar was informed that he was to be assigned
to a "specific project or undertaking." Neither has it
been established that he was informed of the
duration and scope of such project or undertaking
at the time of his engagement. [Philex Mining Corp.
v. NLRC, 312 SCRA 119 (1999)]
Moreover, the re-hiring of Omar is sufficient
evidence of the necessity or the indispensability of
his services to the company's business. [Aurora
Land Projects Corp v. NLRC, 266 SCRA 48(1997}]
Hence, Omar is correct in claiming that he
is a regular employee of Design Consultants, Inc.
PROJECT EMPLOYMENT
- When the employment has been foxed for a
specific project or undertaking, the
completion or termination of which has been
determined at the time of the 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.
Requirement
1. Specific project or phase thereof stated in the
employment contract;
2. Estimated date of completion of project or
phase thereof likewise stated in the
employment contract;
3. Employee must have been dismissed every
after completion of his project or phase (gaps
must be shown in his length of service); and
4. There must be a report to the DOLE of his
dismissal on account of completion of
contract.
Q: Diosdado, a carpenter, was hired by Building
Industries Corporation (BIC), and assigned to
build a small house in Alabang. His contract of
employment specifically referred to him as a
"project employee," although it did not provide
any particular date of completion of the project.
Is thv e completion of the house a valid
cause for the termination of Diosdado’s
employment? If so, what are the due process
requirements that the BIC must satisfy? If not,
why not? (3%)
SUGGESTED ANSWER:
The completion of the house should be valid
cause for termination of Diosdado‘s employment.
Although the employment contract may not state a
particular date, but if it did specify that the
termination of the parties‘employment relationship
was to be a ―day certain‖ – the day when the phase
of work would be completed – the employee cannot
be considered to have been a regular employee
(Filipinas Pre-Fabricated Building Systems v.
Puente, 43 SCRA 820 [2005]).
To satisfy due process requirement, the
DOLE Department Order No. 19, series of 1993, the
employer is required to report to the relevant DOLE
Regional Office the fact of termination of project
employees as a result of the completion of the
project or any phase thereof in which one is
employed.
ALTERNATIVE ANSWER:
No, the completion of the house is not a valid
cause for termination of employment of Diosdado,
because of the failure of the BIC to state ―the
specific project or undertaking the completion or
termination of which has been determined at the
time of the engagement of the employee. (Labor
Code, Art. 280). There being no valid termination of
employment, there is no need to comply with the
requirements of procedural due process.
Q: Kitchie Tempo was one of approximately 500
production operators at HITEC Semiconductors,
Inc., and export-oriented enterprise whose
business depended on orders for computer chips
from overseas. She was hired as a contractual
employee four years ago. Her contracts would be
for a duration of five (5) months at a time,
usually
after a one-month interval. Her re-hiring was
contingent on her performance for the
immediately preceding contract.
Six months after the expiration of her last
contract, Kitchie went to HITEC's personnel
department to inquire why she was not yet being
recalled for another temporary contract. She was
told that her performance during her last stint
was "below average."
Since there was no union to represent
her, Kitchie seeks your advice as a labor lawyer
about her chances of getting her job back. What
will your advice be? (5%)
SUGGESTED ANSWER:
I will, thus, advise her to sue for illegal
dismissal, with prayer for regularization in addition
to the reliefs of reinstatement and full backwages
provide under the Labor Code.
Here, Kitchie’s “below average” rating will
not matter. She was a regular employee from day 1
of her service as her work was evidently usually
necessary or desirable to HITEC’s usual business.
Under par. 1 of Article 289, Kitchie is a regular
employee, not a casual employee.
Also, Kitchie obtained permanent regular
employment when she was repeatedly re-hired by
HITEC. As a permanent regular employee, working
for an indefinite period, Kitchie is entitled to the
reliefs of reinstatement and full backwages as
mandated under the labor code (Article 279).
A “below average” rating would matter if
Kitchie was made to undergo probationary
employment, or was a probationary employee under
Article 281 of the Code, she was not obviously, she
was a qualified and competent production operator;
She would not have been repeatedly re-hired if she
were not that qualified and competent.
Double or Successive Probation NOT ALLOWED
- the evil sought to be prevented is to
discourage scheming employers from using
the system of double or successive probation
to circumvent the mandate of the law or
regularization and make it easier for them to
dismiss their employees.
TERMINATION OF PROBATIONARY
EMPLOYMENT
Probationary employees are protected by the
security of tenure provision of the Constitution.
However, a probationary employee may be
terminated at any time before the expiration of the
probationary period on two (2) grounds:
1. Just causes; and
2. Failure to meet the standards for
qualifications for a regular employment.
Criteria under which Fixed-Period Employment
may be VALID.
1. The fixed period of employment was
knowingly and voluntarily agreed upon by
the parties without any force, duress, or
improper pressure being brought to bear
upon the employee and absent any other
circumstances vitiating his consent; or
2. It satisfactorily appears that the employer
and the employee dealt with each other on
more or less equal terms with no moral
dominance exercised.
Q: What limitations, if any, do the law and
jurisprudence impose on an employer's right to
terminate the services of a probationary
employee? (2%)
SUGGESTED ANSWER:
The Labor Code [in Art. 281) provides that
the services of an employee who has been engaged
on a probationary basis may be terminated for a just
cause or when he fails to qualify as a regular
employee in accordance with reasonable standards
made known by the employer to the employee at the
time of his engagement. If the probationary
employee is being terminated for just cause, he
must, of course, be given due process before his
termination.
Q: On January 3, 1988, Sea Breeze Restaurant,
Inc. (SBRI) hired Juan Reyes as a probationary
kitchen helper. He received and cleaned food
ingredients delivered by suppliers and stored
them in freezer, cleaned kitchenware and
utensils and kept the kitchen tidy. On July 1,
1988, he was sent to the company’s doctor for a
complete medical examination. Thereafter, he
continued working. On July 8, 1988, the doctor
submitted his report finding Juan to have
minimal pulmonary tuberculosis (TB).
The manager consults you as the labor
adviser of the company, and asks if Juan’s
employment can be terminated as his presence
was hazard to the health of other workers and
customers of the restaurant.
Within the time frame of the problem, was
there changes in Jaun’s employment status?
SUGGESTED ANSWER:
(a) There was a change in the employment status of
Juan, from probationary to regular employment.
(b) July 4, 1988 after his six months’ probationary
period.
(c) The labor code (Article 281) provides that “an
employee who is allowed to work after a
probationary period shall be considered a
regular employee.
(d) The company can terminate Juan, but no longer
as a probationary employee, but as a regular
employee wince his six (6) months probationary
period has expired.
Q: Mr. X was hired by Y company on probation
for six (6) months as general utility worker. On
the expiration of the probationary period, Mr. x
was informed by Y co, that his work was
unsatisfactory and failed to meet the required
standard. To give him a chance to improve his
performance, Y co,]. Instead of terminating Mr.
X’s services, extended, with X’s written consent,
the probation period for another three (3)
months. This extension notwithstanding, his
performance sis not improve, on account of the
extended period/ Mr. X filed a case for illegal
dismissal contending that he was already regular
at the time of his dismissal pursuant to Art. 281
of the Labor Code, the particular portion of
which provides:
“xxx, “An employee who is allowed to
work after a probationary period shall be
considered a regular employee.”
Therefore, he should not have been lawfully
dismissed for failure to meet company standards
as a probationary worker. Decide with reason.
SUGGESTED ANSWER:
Mr. X could not argue that because his
probationary period was entered beyond six months
he was now a regular employee and thus could no
longer be terminated except for just or when
authorized by law.
The fact is that the probationary period of
Mr. X was extended beyond six months with his
consent. It was n=to give him an opportunity to
improve his performance.
Thus, it was legal for Y Company to
terminate Mr. X for his failure to meet company
standard as a probationary worker.
The labor code provides that probationary
employment shall not exceed 6 months. But the
Supreme Court has ruled that said probationary
period could be extended with the consent of the
probationary employee to give him an opportunity to
improve his performance. (Art. 281 Labor Code).
Q: Which takes precedence in conflicts arising
between employer’s MANAGEMENT
PREROGATIVE and the employees RIGHT TO
SECURITY OF TENURE? Why?
SUGGESTED ANSWER:
The employee’s right to security of tenure
takes precedence over the employer’s management
prerogatives. Thus an employer’s management
prerogative includes the right to terminate the
services of an employee but this management
prerogative is limited by the Labor Code which
provides that the employer can terminate an
employee only for a just or when authorized by law.
this limitation on management prerogative is
because no less than the Constitution recognizes
and guarantees an employee’s right to security of
tenure.
Q: What are the authorized causes for a valid
dismissal by the employer of an employee? Why
are they distinct from the just causes? (5%)
SUGGESTED ANSWERS:
The AUTHORIZED CAUSES for a valid dismissal are
the following:
1. installation of labor-saving devices
2. redundancy
3. retrenchment to prevent losses
4. the closing or cessation of operation of the
establishment or undertaking
The authorized causes for a valid dismissal
are distinct from just causes because where the
dismissal of an employee is based on just causes,
these just causes are acts committed by the
employee which provide the basis for his dismissal.
On the other hand, where the dismissal is based on
authorized causes, these authorized causes are the
results of the proper exercise by the employer of his
management prerogatives.
If a valid dismissal is based on just causes,
there is no liability on the part of the employer,
although sometimes, financial assistance to be
given to the dismissed employee is asked of the
employer. If a valid dismissal is based on authorized
causes, the employer has to pay separation pay
except in case of closure or cessation of operation
due to serious business losses or financial reverses.
Q: Mara's Canteen (MARA'S) executed an
agreement that UNIVERSAL employees
patronizing MARA'S could buy food on credit and
enjoy a 25% discount povided that they present
their Identification Card (ID) and wear their
company uniform. Nikko, an employee of
UNIVERSAL, used the ID of Galo, a co-employee
in buying food at MARA'S. An alert employee of
MARA'S discovered the misrepresentation of
Nikko but not without engaging him in a heated
argument. Nikko boxed MARA'S employee
resulting in serious physical injuries to the
latter. UNIVERSAL dismissed Nikko from the
company. Nikko sued UNIVERSAL for illegal
dismissal.
As Labor Arbiter, how would you decide
the case? Discuss fully.
SUGGESTED ANSWER:
There is ground for disciplining Nikko. In
presenting the ID of a co-employee to buy food at
Mara's at a discount and engaging in a fist fight,
these acts of Nikko constitute misconduct. But it is
not the kind of serious misconduct that could be the
basis of dismissal. It will be noted that the fight did
not take place at the workplace.
ALTERNATIVE ANSWER:
The facts are not clear whether the canteen
is within the company premises. If it is, then the act
of Nikko in boxing Mara's employee may be
considered as a valid ground for disciplinary action.
However, in this case, the penalty of dismissal is not
commensurate to the misconduct allegedly
committed.
Q: Distinguish between dismissal of an employee
for just cause and termination of employment
for authorized cause. Enumerate examples of
just cause and authorized cause. (5%)
SUGGESTED ANSWER:
Dismissal for a JUST CAUSE is founded on
faults or misdeeds of the employee. Separation pay,
as a rule, will not be paid. Examples: serious
misconduct, willful disobedience, commission of
crime, gross and habitual neglect, fraud and other
causes analogous to the foregoing. (Art 282, Labor
Code).
Termination for AUTHORIZED CAUSES are
based on business exigencies or measures adopted
by the employer, not constituting faults of the
employee. Payment of separation pay at varying
amounts is required. Examples: redundancy,
closure, retrenchment, installation of labor saving
device and authorized cause. (Art. 283-284, Labor
Code).
Q: During their probationary employment, eight
(8) employees were berated and insulted by their
supervisor. In protest, they walked out. The
supervisor shouted at them to go home and
never to report back to work. Later, the
personnel manager required them to explain why
they should not be dismissed from employment
for abandonment and failure to qualify for the
positions applied for. They filed a complaint for
illegal dismissal against their employer.
As a Labor Arbiter, how will you resolve the case?
(10%)
SUGGESTED ANSWER:
I will rule in favor of management.
First of all, there was no abandonment because
there was no intention not to return to work. It was
just that the 8 employees were berated and insulted
and even told never to report back to work. It was
but natural for them to feel demoralized, but there
was never an indication to abandon their
employment.
The probationary workers could, however, be
terminated for failing to meet probationary
standards. If the reason for the supervisor’s berating
and insulting behavior were poor or substandard
performance on the part of the workers, their
probationary employment could be legally
terminated.
Q: Domingo, a bus conductor of San Juan
Transportation Company, intentionally did not
issue a ticket to a female passenger, Kim, his
long-time crush. As a result, Domingo was
dismissed from employment for fraud or willful
breach of trust. Domingo contests his dismissal,
claiming that he is not a confidential employee
and, therefore, cannot be dismissed from the
service for breach of trust. Is Domingo correct?
Reasons. (2%)
SUGGESTED ANSWER:
Domingo as bus conductor holds a position
wherein he was reposed with the employer‘s trust
and confidence. In Bristol Myers Squibb (Phils.) v.
Baban (574 SCRA 198 [2008]), the Court
established a second class of positions of trust that
involve rank-and-file employees who, in the normal
and routine exercise of their functions, regularly
handle significant amounts of money. A bus
conductor falls under such second class persons.
This does not mean, however, that Domingo should
be dismissed. In Etcuban v. Sulpicio Lines (448 SCRA
516 [2005]), the Court held that where the amount
involve is miniscule, an employee may not be
dismissed for loss of trust and confidence.
Q: Mariet Demetrio was a clerk-typist in the
Office of the President of a multi-national
corporation. One day she was berated by the
President of the company, the latter shouting
invectives at her in the presence of employees
and visitors for a minor infraction she
committed. Mariet
was reduced to tears out of shame and felt so
bitter about the incident that she filed a civil
case for damages against the company president
before the regular courts. Soon thereafter,
Mariet received a memorandum transferring her
to the Office of the General Manager without
demotion in rank or diminution in pay. Mariet
refused to transfer.
With respect to the civil suit for damages, the
company lawyer filed a Motion to Dismiss for
lack of jurisdiction considering the existence of
an employer-employee relationship and
therefore, it is claimed that the case should have
been filed before the Labor Arbiter.
1. Will Mariet Demetrio's refusal to transfer
constitute the offense of insubordination?
Explain briefly. (2%}
SUGGESTED ANSWER:
Mariet Demetrio's transfer constitutes the
offense of insubordination. The transfer is a lawful
order of the employer.
It is the employer's prerogative, based on its
assessment and perception of its employees'
qualifications, aptitudes, and competence, to move
its employees around in the various areas of its
business operations in order to ascertain where they
will function with maximum benefit to the company.
An employee's right to security of tenure does not
give him such a vested right in his position as would
deprive the company of its prerogative to change his
assignment or transfer him where he will be most
useful. When his transfer is not unreasonable, nor
inconvenient, nor prejudicial to him, and it does not
involve a demotion in rank or a diminution of his
salaries, benefits, and other privileges, the employee
may not refuse to obey the order of transfer.
(Philippine Japan Active Carbon Corp. V. NLRC, 171
SCRA 164)
Q: "A" worked for company "B" as a rank and file
employee until April 1990 when A's services
were terminated due to loss of confidence in A.
However, before effecting A's dismissal, B
accorded A due process including full
opportunity the investigation. Was B justified in
dismissing A after the investigation? Why? (5%)
SUGGESTED ANSWER:
In the case of PLDT vs. NLRC (G.R. No. 106947,
February 11, 1999), the Supreme Court ruled that
the basic requisite for dismissal on the ground of
loss of confidence is that the employee concerned
must be one holding a position of trust and
confidence.
Rank-and-file employees may only be dismissed for
loss of confidence if the same is because of a willful
breach of trust by a rank and file employee of the
trust reposed in him by his employer or duly\
authorized representative (Art. 282(c), Labor Code).
ANOTHER SUGGESTED ANSWER:
"B" is justified in dismissing "A" for loss of
confidence after according him the right to
procedural due process. However, the following
guidelines must be observed, as ruled in Nokom vs.
NLRC, G.R. No. 140034. July 18, 2000:
1. loss of confidence should not be simulated;
2. it should not be used as subterfuge for causes
which are improper, illegal or unjustified;
3. it may not be arbitrarily asserted in the face of
overwhelming evidence to the contrary; and
4. it must be genuine, not a mere after thought to
justify their action.
Q: Marimar is a teacher in Santibanez High
School, She is the class adviser of the senior
batch where Sergio is enrolled. Since it is the
policy of the school to extend remedial
instructions to its students, Sergio is imparted
such instructions in school by Marimar after
regular class hours. In the course thereof,
Marimar and Sergio fell in love with each other
and shortly after got married. Marimar is 31
years old while Sergio is only 16.
Santibanez High School thereafter seeks to
terminate the employment of Marimar for
abusive and unethical conduct unbecoming of a
dignified school teacher and that her continued
employment is inimical to the best interest and
would downgrade the high moral values of the
school. Marimar, according to the school,
recklessly took advantage of her position as a
teacher by luring a graduating student under her
advisory section and 15 years her junior into an
amorous relationship, in violation of the Code of
Ethics for teachers which states, among others,
that a "school official or teacher should never
take advantage of his/her position to court a
pupil or student." While no one directly saw
Marimar and Sergio doing any intimate acts
inside the classroom, the school nonetheless
maintains that the marriage between the two is
the best proof which confirms the suspicion that
Marimar and Sergio indulged in amorous
relations inside the classroom after class hours.
Marimar, on the other hand, contends that there
is nothing wrong with a teacher falling in love
with her pupil and consequently, contracting
marriage with him. How would you decide the
case! Explain.
SUGGESTED ANSWER:
The fact that Marimar and Sergio got married is not
by itself sufficient proof that Marimar as a 31 year
old teacher, took advantage of her position to court
Sergio, a 16-year old student, whom she was
tutoring after regular class hours. Thus, Marimar
could not be considered as violating the school's
Code of Ethics which could have been a valid cause
for her termination. Marimar's falling in love with
her student cannot be considered serious
misconduct which is a Just cause for termination of
employment.
Of course, if it is proven that Marimar and Sergio
indulged in amorous relations inside the classroom
after class hours, this would constitute serious
misconduct on the part of Marimar as a teacher and
could be just cause for the termination of her
employment.
ALTERNATIVE ANSWER:
The case should be decided in favor of Marimar, the
school teacher. The school failed to adduce evidence
in support of its claim of immoral conduct on the
part of Marimar; hence, its claim "that the marriage
between the two (teacher and student) is best proof
which confirm the suspicion that Marimar and
Sergio indulged in amorous relations inside the
classroom after office hours" is a gratuitous
statement. Furthermore, marriage between two
parties of disparate ages, even as between an older
teacher and a younger student is not an immoral
act.
In Chua Qua v Clave, 189 SCRA 117 (1990) a case
which is exactly similar to the problem, the Supreme
Court ruled:
Where there is no substantial evidence of the
imputed immoral acts, it follows that the alleged
violation of the Code of Ethics would have no basis.
If the two eventually fell in love, despite the disparity
on their ages and academic levels, this only lends
substance, to the truism that the heart has reasons
of its own which reason does
not know. But, definitely, yielding to this gentle and
universal emotion is not to be casually equated with
immorality. The deviation of the circumstances of
their marriage from the usual societal pattern
cannot be considered as a defiance of contemporary
social norms.
Q: Coronet Records Phil. (CRP) manufactures
audio/video record players, compact discs, video
discs, cassettes and the like. CRPs shareholdings
is 40% foreign and 60% domestic. CRP signed a
Collective Bargaining Agreement (CBA) with its
rank-and-file workers for three years starting
from January 1, 1990 and ending on December
31, 1993.
Before the expiration of the CBA, CRP decided to
sell all its assets to Lyra Music Corporation
effective September 30, 1993. In this regard,
notice was sent on August 30, 1993 to each
employee advising them of the sale of the
Company's assets to Lyra Music Corporation and
the closure of the company's operations
effective September 30, 1993. CRP, likewise,
requested that each employee receive his
separation pay equivalent to one-and-one-half (1
& 1/2) month's pay per year of service, exclusive
of all unused leaves which were also converted
to cash, and his 13th-month pay for 1993.
The employees received their respective
separation pay under protest and thereafter filed
an action against CRP and Lyra Music
Corporation for unfair labor practice (ULP). The
Arbiter ruled in favor of the workers and ordered
Lyra Music Corporation to absorb the former
workers of CRP.
Was the Labor Arbiter correct in his decision?
SUGGESTED ANSWER:
No. The Labor Arbiter is not correct. As held
in the case of San Felipe Neri School of
Mandaluyong vs. NLRC, when there is a legitimate
sale of a company's assets, the buyer in good faith
cannot be legally compelled to absorb the employees
of the seller in good faith. In the case at bar, the
employees of the CRP were validly terminated based
on Article 284, e.g. closure of operations and
separation pay was paid at a rate much higher than
the law.
Furthermore, the case filed by the employees
was UNFAIR LABOR PRACTICE. It is highly
irregular to order absorption of employees in a ULP
case.
Q: What conditions must prevail and what
requirements, if any, must an employer comply
with to justify/effect a valid redundancy
program? (2%).
SUGGESTED ANSWER:
In the case of Asian Alcohol Corp. (supra),
the Supreme Court stated that REDUNDANCY
exists when the service capability of the work is in
excess of what is reasonably needed to meet the
demands on the enterprise. A REDUNDANT
POSITION is one rendered superfluous by any
number of factors, such as overhiring of workers,
decreased volume of business dropping of a
particular line previously manufactured by the
company or phasing out of a service activity
previously undertaken by the business. Under these
conditions, the employer has no legal obligation to
keep in its payroll more employees than are
necessary for the operation of its business.
For the implementation of a redundancy program to
be valid, the employer must comply with the
following REQUISITES:
(1) written notice served on both the employees
and the Department of Labor and
Employment at least one month prior to the
intended date of retrenchment;
(2) payment of separation pay equivalent to at
least one month pay or at least one month
pay for every year of service whichever is
higher;
(3) good faith in abolishing the redundant
positions; and
(4) fair and reasonable criteria in ascertaining
what positions are to be declared redundant
and accordingly abolished.
Q: ABC Tomato Corporation, owned and
managed by three (3) elderly brothers and two (2)
sisters, has been in business for 40 years. Due to
serious business losses and financial reverses
during the last five (5) years, they decided to
close the business.
1. As counsel for the corporation, what steps
will you take prior to its closure? (2.5%)
2. Are the employees entitled to separation
pay? (2.5%)
SUGGESTED ANSWER:
1. As counsel for the corporation, I will see to it
that the corporations shall serve a written
notice on its intended date of closing or
cessation of operations on the workers of the
corporation and the Department of Labor
and Employment at least one (1) month
before the intended date of the closure or
cessation of operation.
2. The employees of the corporation are not
entitled to separation pay because Article
283 of the LC expressly provides that if the
closure or cessation of operation of an
establishment is due to serious business
losses or financial reverses, the employee are
not entitled to separation pay.
If the reason for the closure is due to old age
of the brothers and sisters.
1. Is the closure allowed by law?
SUGGESTED ABSWER:
Yes, the closure is allowed by law. for a bona
fide reason, and employer can lawfully close shop at
any time. just as no law forces anyone to go into
business, no law can compel anybody to continue
the same. It would be stretching the intent and spirit
of the law if the court interferes with management’s
prerogatives to close or cease its business operation
just because the business is not suffering from any
loss or because of the desire to provide workers
continued employment.
2. Are the employees entitled to
separation benefits?
SUGGESTED ANSWER:
The employees of the corporation are entitled
to separation pay because the Labor Code expressly
provides that the only time that they are not entitled
to separation pay is when the closure or cessation
of operation is due to serious business losses or
financial reverses.
Q: As a result of bargaining deadlock between
ROSE Corporation and ROSE Employees Union,
its members staged a strike. During the strike,
several employees committed illegal acts. The
company refused to give in to the union's
demands. Eventually, its members informed the
company of their intention to return to work.
(10%)
1. Can ROSE Corporation refuse to admit all the
strikers?
SUGGESTED ANSWER:
Rose Corporation cannot refuse to admit all
the strikers. Participants in a lawful strike generally
have the right to reinstatement to their positions
upon the termination of the strike (Insular Life
Assurance Co. Employees Assn. v. Insular Life
Assurance Co., G.R. No. L-25291, January 30,
1979; Consolidated Labor Assn. of the Phil. v
Marsman & Co., Inc., G.R. No. L-17038, July 31,
1964). However, the Labor Code provides that any
worker or union officer who knowingly participates
in the commission of illegal acts during a strike may
be deemed to have lost his employment status
(Bascon v. CA, G.R. No. 144899, February 5, 2004;
First City Interlink Trans. Co., Inv. v. Confessor,
G.R. No. 106316, May 5,1997; Lapanday Workers'
Union v. NLRC, G.R. Nos. 95494-97, September 7,
1995; Art. 264, Labor Code)
Q: Gabriela Liwanag has been working as
bookkeeper at Great Foods, Inc., which operates
a chain of high-end restaurants throughout the
country, since 1970 when it was still a small
eatery at Binondo. In the early part of the year
2003, Gabriela, who was already 50 years old,
reported for work after a week-long vacation in
her province.
It was the height of the SARS (Severe Acute
Respiratory Syndrome) scare, and management
learned that the first confirmed SARS death case
in the Philippines, a “balikbayan” nurse from
Canada, is a townmate of Gabriela. Immediately,
a memorandum was issued by management
terminating the services of Gabriela on the
ground that she is a probable carrier of SARS
virus and that her continued employment is
prejudicial to the health of her co-employees.
Is the action taken by the employer justified?
(5%)
SUGGESTED ANSWER:
The employer's act of terminating the
employment of Gabriela is not justified. There is no
showing that said employee is sick with SARS, or
that she associated or had contact with the
deceased nurse. They are merely townmates.
Furthermore, there is no certification by a
competent public health authority that the disease
is of such a nature or such a stage that it cannot be
cured within a period of six (6) months even with
proper medical treatment. (Implementing Rules,
Book VI, Rule 1, Sec. 8, Labor Code).
tantamount to dismissal. In the hearings, the
employer will have the burden of proving that there
is just cause for terminating Juan, possibly on the
basis of willful
breach of trust. On the other hand, Juan will be
given the opportunity to prove that his failure to
remit his collection is not because of dishonesty.
2. Assuming that he cannot be reinstated, what
right can he immediately assert against his
employer? Explain.
SUGGESTED ANSWER:
Assuming that Juan cannot be reinstated
because there is just cause for his dismissal, he
would nevertheless be entitled to an indemnity from
his employer, because he was denied due process of
law by said employer.
ALTERNATIVE ANSWER:
Juan can pursue the case of illegal dismissal
before a Labor Arbiter where he will assert the right
to defend himself, ie., to explain his failure to remit
his collections.

Q: Juan Dukha, a bill collector of Ladies

Garments Company, was dismissed because he
did not remit his collections. He filed a case
against his company for illegal dismissal. During
the hearing, the President of the Company
admitted that Juan was never formally
investigated for his dishonesty; neither was he
informed of the nature of the charge against him.
He was simply barred from entering company
premises by the security guards upon
instruction of management.

Juan Dukha asks for immediate reinstatement

with full back wages and without loss of seniority
rights.

1. Will the complaint of Juan Dukha for illegal

dismissal prosper? Explain.

SUGGESTED ANSWER:
Yes, there may be just cause for terminating
Juan Dukha. But he was not accorded the required
due process of law.

ALTERNATIVE ANSWER:
The complaint of Juan Dukha for illegal
dismissal will prosper in the sense that the
complaint will be heard by a Labor Arbiter. His being
barred from entering company premises is