COLLECTIVE BARGAINING AND ADMINISTRATION AGREEMENT
Part 1
11. What do you
mean by duty to bargain? Does the duty to bargain ends when there is already a
CBA?
Answer: It means the performance of the mutual
obligation to meet regularly in good faith for the purpose of negotiating an
agreement in terms of wages, hours of work and all other terms and condition of
employment. Further, includes the proposal for adjusting any grievances or
question arising under such agreement and executing a contract incorporating
such agreement. No. As provided by
law, it shall be the duty of both parties to keep the status quo and to
continue in full force and effect the terms and conditions of the existing
agreement during the 60-day period and/or until a new agreement is
reached by the parties.
12. Please
explain the four forms of violation of the duty to bargain and explain each
briefly.
Answer:
1.
Failure or refusal to meet and convene. This is a kind of ULP, if, the employer refuse or failed to meet with
the bargaining representative of the labor union and recognize the same.
2.
Evading mandatory subjects to bargaining. The bargaining agreement should contained “wages, hours, and
other terms and conditions of employment” Refusal to negotiate with the
mandatory subjects tantamount to ULP.
3.
Bad faith in bargaining including failure or refusal to
execute the collective agreement. Good faith per se not required in a agreement however if the employer is
inviting the employees to seek redress to its union despite the grievance
machinery, delaying of, or Imposing Time limit on Negotiations etc.
4.
Gross violation of the CBA. This last ULP relating to bargaining happens when agreement
is already in place. The provision in the agreement must be faithfully adhered,
non-adherence results to ULP. s
13. Who is a “successor employer”? What is
the rule in determining whether the employer is a successor?
Answer: As a rule,
the transfer of assets and employees from one employer to another leaves intact
the identity of the employing enterprise, the transferor in the sales is known
as “successor employer” wherein has the duty to recognize and bargain with an
incumbent union. The rules is a provided by law, if the transfer of assets and
employees from one employer to another leaves intact the identity of the
employing enterprise, the duty of the former employers to recognize the union
passes to the new owner.
14.
If the employer is suffering from financial hardship, can the
employer be justified in refusing to bargain?
Answer: In a case held by the Supreme Court, the
employer was not held guilty in refusing to bargain citing the operation of the
business at loss. However, but financial hardship constitutes no excuse for
refusing to bargain collectively.
15.
Could you give examples of acts which are not considered as
refusal to bargain?
Answer: The duty to
bargain is not violated by: (1) adoption of an adamant bargaining position in
good faith particularly when the company is operating at a loss; (2) refusal to
bargain over demand for commission of a ULP; (3) refusal to bargain during
period of strikes; (4) no request for bargaining; (5) union is asking
recognition for an inappropriate lawge unit; (6) union seeks to represent
someone who is excluded by law; (7) rank-in-file employee includes supervisors
16.
Supposing the union, after complying with the pre requisites
for CBA Negotiation, sent a proposal to the employer however the employer
simply ignored the proposal, can the proposed CBA by the union be implemented
and be considered as the contract between the union and the employer?
Answer: No. as
held by the Supreme Court, the CBA cannot be implemented. However, the employer
may be held liable for ULP for its bad faith.
17. Could you give examples of matters
considered as mandatory subject of bargaining?
Answer: Examples
are wages and other types of compensation, working hours and working days,
vacation and holiday, bonuses, pensions and retirement plans, seniority,
transfer, lay-offs, employee workloads, work rules and regulation, rent of
company houses, and union security arrangement.
18.
Is the affordability or capacity of the employer considered
as the sole factor in determining the wage award? If yes, please explain. If no, how should the determination be made
then?
Answer: No. As held
by the Supreme Court, affordability or capacity to pay is not only the sole
yardstick in determining the wage ward.
19.
What is an impasse? If
the negotiation reached impasse, does it mean that there is bad faith?
Answer: Impasse is an effort in a bargaining, despite intention, it
was now included in the CBA. No. As
provided by law, adamant insistence on a bargaining position to the point where
the negotiation reach an impasse does not establish bad faith.
20.
What is the effect of
an impasse? Does it mean that the negotiation is to be concluded already?
Answer: The effect
would be deadlock. No. As provided by law, deadlock does not mean the end of
bargaining. It signals rather the need to continue the bargaining with the
assistance of a third party as conciliator or arbitrator.
21.
Can a bargaining impasse be resolved through arbitration of
by a labor arbiter?
Answer: Yes.
However, the arbitration is a voluntary one.
22.
How do we know if
there is good faith bargaining?
Answer: if the
employer is insisting on the inclusion of a subject which is within the scope
of a statutory subject in the provision in CBA
23.
Could you illustrate bargaining in bad faith?
Answer: if there
is an insistence on non-mandatory subject as a condition to bargain on
mandatory subject indicates absence if good faith in bargaining.
24.
What is surface
bargaining? How do we know if there is surface bargaining?
Answer: A
simulated collective bargaining wherein both parties go
through the motions of bargaining but don't have a legal intent to make an
agreement.
25. What is
blue sky bargaining?
Answer: Bargaining
where exaggerated or unreasonable proposals are made. Usually this bargaining
happens when the labor union is belongs to an extreme faction
26. Please
explain boulwarism.
Answer: Bargaining
technique wherein the employer‘s proposal is offered on a "take it or
leave it" basis
27.
Supposing the CBA has already been completed by the union and
the employer, what is the next step or requirement?
Answer: As provided
by law, the next step is registration of the CBA to Regional DOLE.
28. Who should
ratify?
Answer: As provided
by law, the agreement or CBA should be ratified and approved by the majority of
all the workers in the bargaining unit.
29. Is there any instance when ratification is not
needed?
Answer: Yes. Ratification of the CBA by the employees in the
bargaining unit is not needed when the CBA is a product of an arbitral award by
appropriate government authority or by a voluntary arbitrator.
30. Supposing the CBA was not ratified by majority
of all the workers in the bargaining unit, but the employees are already
enjoying the benefits of the CBA, what is the effect of the unratified by
implemented CBA?
Answer: The CBA is still valid. However, the employers and its
union can no longer disclaim its validity.
31. Is the CBA required to be registered with the
DOLE? What are the registration requirements?
Answer: Yes. CBA properly ratified should be registered with the
DOLE Regional Office where the bargaining unit s is registered or where it
principally operates. Requirements
are as follows: (1) collective bargaining agreement; (2) a statement that the
CBA was posted in at least two conspicuous places in the establishment concerned for at least five days before its
ratification; and (3) statement that a CBA was ratified.
32. Supposing
the CBA was not yet registered, can the parties already implement or execute
the CBA?
Answer: Yes. As provided by law, once entered and signed by both
parties, CBA becomes effective.
33. Could you please discuss the ruling in the
case of New Pacific Timber and Supply Company Inc, vs NLRC as regards the
automatic renewal one the CBA?
Answer: in the case, the
Supreme Court held, neither is the certification of the CBA by the Bureau
required to put a stamp of validity to such contract. Once it is duly entered
into and signed by the parties, a CBA becomes effective as between the parties
regardless if whether the same has been certified by the BLR.
34. What is the effectivity date of the CBA?
Answer: As provided by law, once it is duly entered into and signed
by the parties, a CBA becomes effective
35. What is the
duration of the CBA?
Answer: As provided
by law, CBA last for 5 years.
36.
When is an extension of the effectively of the CBA considered
as valid?
Answer:
37.
What is the no injunction policy under Article 266? Why is
there such a policy? Please explain.
Answer:
PART 2:
1. What is the
meaning or extent of the worker’s right to participate in policy and decision
making?
Answer: it means participation in grievance procedure
and voluntary modes of settling disputes, and collective bargaining- and not to
formulation of corporate programs or policies. The focus of participation is
the rights and benefits of the workers.
2. When does the
right to participate end?
Answer: The focus
of the right to participate in policy and decision making is grievance
procedure and voluntary modes of settling disputes, and collective bargaining
which protects the rights and benefits of the workers. However, this not
included to formulation of corporate programs or policies and control on the
corporation.
3. What
constitutes “appropriate” bargaining unit? What can be considered as factors in
determining the “appropriate” bargaining unit?
Answers: The Labor
Code of the Philippines does not discuss or explain ‘appropriateness’ of
CBU. To determine its appropriateness it
must answer whether it will best assure to all employees the exercise of their
collective bargaining rights.
4. Please
explain the “Globe Doctrine” as enunciated in the case of Globe Machine &
Stamping Co.
Answer: The desire and wishes of the employee are
relevant to the determination of the appropriate bargaining unit. Their wish
for exclusion and inclusion to the CBU is an inherent right of
self-organization. Though their desire is not controlling, it is a factor that
would be taken in reaching a decision.
5. Why a
single or employer unit is is preferred (one unit policy)?
Answer: Unionism
is better serve if all the rank-and-file employees with substantially the same
interest and who invoke their right to organized into a single unit so that
they can deal with their employer with single voice.
6. Is the rule
on one unit policy absolute? Are there exceptions?
Answer: No. the exceptions, is where the employer unit
has to give away to the other units. The exception assures the employees may exercise its right to its
fullest freedom.
7. What is the
four-factor analysis?
Answer: it’s a way
to determine whether two or more employers constitute a single employer. (1)
Interrelation of operation; (2) centralized control of labor relation; (3)
common management; and (4) common ownership.
8. Are union
and bargaining unit the same? Why is it important to distinguish a union from a
bargaining unit?
Answer: No. it is
important because it leads to the determination of: (1) employees who can vote
in the certification election ;( 2) employees to be represented in bargaining
with the employer; and (3) employees who will be covered by resulting CBA
9. What is
SEBA Certification? Please discuss the process in SEBA Certification.
Answer: it is a
certification from DOLE regional director, upon request of union, to certify
the union as the sole and exclusive bargaining agent. The certification may be
issued provided they must proved that: (1) that bargaining unit is ununionized;
(2) they are the only union in that bargaining unit; ( 3) the CBU are the
majority members of the union; (4) facts should proved by documentary evidence by payroll,
registration certificate as an
independent union or charter certificate for chapters. It must be true and
correct, submitted under oath. If denied, it may referred to election officer
for the conduct of election.
10. What is
certification election? How is CE different from Union Election?
Answer: it is the
process of determining the sole and exclusive representative of the employees
in appropriate bargaining unit through secret ballot. Union Election is
conducted according to the union’s constitution and by-laws, and the right to
vote therein is only enjoyed by union members while CE, is the process, ordered
and conducted by DOLE though secret ballot to determine whether majority
of the employees wish to be
represented by a labor union.
11. Who can
file for Petition for Certification Election (PCE)?
Answer: As
provided by law, it may be filed by a registered union or by an employer.
12. What is the
equity of incumbent rule as regards PCE?
Answer: the incumbent CBU remains its representative
status and remains the sole
bargaining representative until
it is replaced by another. Hence, until replaced it has the right to
retain the recognition by the employer.
13. When and
where is a PCE filed?
Answer: depends
whether the CBU has CBA. If it has no CBA, may be filed anytime exception within 12 months of a previous election. If it has, may be
filed only within the ‘freedom period’
which is to last 60 days of the fifth
year of the CBA. Further, it must be filed at DOLE Regional Office.
14. What are
the forms and contents of the petition?
Answer: Petitions
shall be in writing, verified under oath by the president of the petitioning
labor union. Where a federation or
national union files a petition behalf of its local or affiliate union,
petition shall be verified under oath by the president or it’s duly
representative with attached charter certificate or a certified true copy.
Further, petition should contain that the bargaining unit is unorganized and no
registered CBA, if there is existing CBA, petition should be filed 60 days of
such agreement, signature of 25 % of employees.
15. Please
explain the process in the PCE after filing of the Petition.
Answer: it is
raffled and assigned to the mediator-arbiter whose responsibility is to
prepared and serve a notice of preliminary investigation which shall be held
within 10 days from the receipt of MA. If the union agrees to hold consent
election, PCE no longer needs to conduct hearing. If not, the MA may conduct
hearing as may deemed necessary.
16. What are
the grounds for disapproval or denial of PCE? Please discuss each briefly,
Answer: the ground
is Non-appearance of petitioner for two consecutive hearings; illegitimacy –
unregistered is that petitioner union is not registered union at DOLE; no
charter- failed to attached a charter certificate; absence of employment
relationship – no employer-employee relationship; election bar (12-months bar)
– petition was filed within one-year for
the recording of a valid certificate;
(deadlock) – where a union has commenced and sustained negotiations
with the employer in accordance
with the law;(existing CBA) – filed within 60 days freedom period; (Lack of support)- failure to
submit a petition with 25% signature requirement.
17. When is the
contract bar rule applied? When it is not applied?
Answer: No petition
for certification election may be filed before the onset neither of the freedom
period nor after such period. It will not be applied when CBA is adequate in
that is comprises substantial terms and condition of employments, referendum to
register an independent union, and CBA signed before or within freedom period
18. What are
the requisite for the contract bar rule to apply?
Answer: It must
contain substantial terms and condition of employment sufficient to stabilized
the bargaining relationship; signed by the parties; effective date and
expiration date must be readily discernible on the face of the contract.
19. What are
the prohibited grounds for the denial or suspension of the PCE?
Answer: The
following are the prohibited grounds for the denial or suspension of the PCE:
Commingling, validity of registration, authority to decide the existence of employer-employee
relationship
20. Could you explain the rule that the “employers
are mere bystander”?
Answer: As held by
the Supreme Court, this doctrine allows an employer to protest against
irregularities committed in the conduct of certificate of election.
21. In case of approval of the PCE, what are the
requirements (time to release order, what should the ruling state)?
Answer: The
Mediator shall release his/her order or decision granting or denying the
petition within 10 days for the last hearing, copy furnished the employer.
22. Can an
order granting or denying a PCE be appealed? If yes, on what grounds and what
are the requirements?
Answer: Yes. First,
after the med-arbiter decides the petition for CE, and second, after the CE,
when the med-arbiter certifies the election results.
23. If the PCE was approved and an order or ruling
for the conduct of the CE was already released, what is now the next step? How
is a CE conducted?
Answer: The next
step is conducting C.E. First, is conducting pre-election conference, after 24 hours
from receipt of the notice of entry of final judgment, the Regional Director
shall cause to raffle of the case to an election officer who shall have
control of the process and election
proceeding.
24. Who can
vote in the CE?
Answer: all
employees who are members of the appropriate bargaining unit 3 months prior of
the filling of the petition. An employee dismissed from work but contested the
legality of the dismissal in a forum of appropriate jurisdiction is entitled to
vote,unless his dismissal is declared by valid by final judgment.
25. Can the
following vote? (a) dismissed employee (b) probationary employees
Answer: dismissed
employee may who was dismissed to work but contested the legality of the
dismissal in a forum of appropriate jurisdiction is entitled to vote, unless
his dismissal is declared by valid by final judgment and a probationary
employees who has substantial interest in the selection of bargaining
representative may vote
26. How is
voting done?
Answer: it is done
in secrecy and sanctity of the ballot and by marking of votes.
27. Who canvas
the votes? What is the process?
Answer: As provide
by law, the votes casted shall be counted and tabulated by the election officer
in the presence of the representative of the contending unions. After the
canvas, the EO will give each representative a copy of the minutes of the
election proceeding and results of the election. Tally sheet and ballot will be
sealed in an envelope and signed by the
EO and the representative of the contending Union and transmitted to the
Med-Arbiter, together with the minutes and result of the election with 24 hours
form the completion of the canvas.
28. Who
proclaims and certifies the winner in the CE? When is proclamation done?
Answer: Election
Officer proclaims and certifies the winner in the CE. Same period of
transmittal of final canvas issues order proclaiming the results of the election and certifying
the union got the majority of t he valid votes cast.
29. When is
there a failure of election? What is the effect of a failure of election? What
is the remedy in case of failure of election?
Answer: it happens
when the number of the votes cast in a certification or consent election is
less than the majority of the number of eligible voters and there is no
material challenged votes.
30. Who are qualified to vote in the runoff
election?
Answer: same qualification
in the CE
31. Can the
employer protest the election?
Answer: Yes. As
held by the Supreme Court, though employer is prohibited from doing that would
interfere with the conduct of the election for the purpose of influencing the
outcome of election. However, employer has an abiding interest in seeing to it
that the election is clean peaceful, order and credible.
32. What is
consent election? Please discuss.
Answer: Like SEBA
Certification and Certificate of Election, it is a method to determine which union
will bargain with the employer. Unlike with the two, this method is voluntarily
agreed upon by the parties, with or without the intervention of the Department.
This may take in an unorganized or organized
establishment.
GRIEVANCE MACHINERY AND
VOLUNTARY ARBITRATION
1.
Why is the CBA considered as
the ‘law between the parties”? If there is a violation of the terms of the CBA,
what is the remedy of the aggrieved party?
Answer: The
provisions of the CBA like a contract must be respected since its terms and
conditions "constitute the law between the parties." Those who are
entitled to its benefits can invoke its provisions. In the event that an
obligation therein imposed is not fulfilled, the aggrieved party has the right
to go to court for redress.
2.
In the case of Holy Cross of
Davao College vs. Holy Cross of Davao Union -KAMAPI, why did the Court ruled
that Petitioner is entitled to the benefits (18 months study leave) stated in
the CBA although there was a subsequent policy issued by the School wherein
employees, such as the petitioner is only allowed 12 months study leave w pay?
Answer: Because collective
bargaining agreement is considered the law between the parties, containing as
it does the agreed terms of employment of the employee with his employer,
unilaterally imposed orders or rules qualifying the terms contained in the
agreement are subordinate to the CBA.
3.
How should a CBA be
construed? Why?
Answer: CBA being a contract, New
Civil Code governs the interpretation of contracts should govern. The intent of
the parties should be ascertained by considering relevant provisions of said
CBA. if the terms of the contract are clear, the literal meaning of the
stipulations shall control, but if the words appear to be contrary to the
evident intention of the parties, the latter shall prevail over the former. Any
doubts or ambiguity in the contract between management and the union members
should be resolved that all labor legislation and all labor contracts shall be
construed in favor of the labor and those not ambiguous are to be interpreted
according to their literal meaning and should not be interpreted beyond their
obvious intendment.
4.
Supposing a particular
proposal was not included in the final CBA, but during the negotiation state,
such proposal was unanimously agreed upon by all parties, can such proposal be
binding? Why?
Answer: No. It cannot serve as
basis of a charge of violating the CBA or of bargaining in bad faith.
5.
What is a zipper clause?
Answer: CBA is a complete
agreement; negotiation is closed. Hence, stipulation in a CBA indicating that
issues that could have been negotiated upon but not contained in the CBA cannot
be raised for negotiation when the CBA is already in effect.
6.
Is a CBA binding upon
non-union members employees? Please explain.
Answer:
Yes. Because to accord its benefits only to members of the union without any
valid reason would constitute undue discrimination against non-members.
7.
Can the CBA apply to a
manager? If yes, what is the legal basis? If no, is this not unfair on the part
of the manager who is also an employee?
Answer: No. as provided by law
they would be exposed to the temptation of colluding with the union during the
negotiations to the detriment of the manager.
8.
Can the CBA also apply to
newly hired employee? why?
Answer: Yes. Because as provided by
newly hired employee like non-members employees who do not join the the union
are also bound by CBA.
9.
Is a CBA enforceable against
a transferee of an enterprise? Is this absolute?
Answer: Yes. As a general rule,
labor contracts, such as employment contracts and collective bargaining
agreements are not enforceable against a transferee of an enterprise, labor
contracts being in personam, thus binding only between the parties unless expressly
assumed and if the transaction between the parties is colored or clothed with
bad faith
10.
What is the Wiley Doctrine?
Answer: a duty to arbitrate arising
from a collective bargaining agreement survives the employer's ceasing to do
business as a separate entity after its merger with a substantially large
corporation, so as to be binding on the larger corporation, where relevant
similarity and continuity of operations across the change in ownership is
evidenced by the wholesale transfer of the smaller corporation's employees to
the larger corporation's plant.
11.
Can employees revoke the CBA
simply by changing their bargaining representatives?
Answer: No. employees cannot revoke
the validly executed collective bargaining contract with their employer by the
simple expedient of changing their bargaining representative
12.
Please define grievances.
Answer: any question by either the
employer or the union regarding the interpretation or application of the
collective bargaining agreement or company personnel policies or any claim by
either party that the other party is violating any provision of the CBA or company
personnel policies.
13.
Differentiate CBA from
company personnel policy.
Answer: CBA is a contract executed
upon request of either the employer or the exclusive bargaining representative
of the employees incorporating the agreement reached after negotiations with
respect to wages, hours of work and all other terms and conditions of
employment, including proposals for adjusting any grievances or questions under
such agreement while company personnel policy are guiding principles stated in
broad, long-range terms that express the philosophy or beliefs of an
organization's top authority regarding personnel matters.
14.
Are all grievances arising
from implementation and interpretation of CBA required to undergo grievance
machinery? Why or why not?
Answer: No. because of the
expansion of the original and exclusive jurisdiction of voluntary arbitrators
to include questions arising from the interpretation and enforcement of company
personnel policies has the effect of widening the meaning and interpretation of
a grievance to include a situation where there is no collective bargaining
agent and no CBA.
15.
What is the effect is the
grievance did not undergo grievance machinery?
Answer: Since it is compulsory, it
will tantamount to ULP.
16.
Can the submission to
grievance machinery be waived? if yes, how?
Answer:
Yes, by Submitting Agreement duly signed by their respective counsels
17.
Please state the procedure
for handling grievances.
Answer: An employee shall present
his grievance or complaint orally or in writing to the shop steward. Upon
receipt thereof, the shop steward shall verify the facts and determine whether
or not the grievance is valid.
(b) If
the grievance is valid, the shop steward shall immediately bring the complaint
to the employee's immediate supervisor. The shop steward, the employee and his
immediate supervisor shall exert efforts to settle the grievance at their
level.
(c) If
no settlement is reached, the grievance shall be referred to the grievance
committee which shall have ten (10) days to decide the case.
18.
What is voluntary
arbitration (VA) and when is this resorted to?
Answer: refers to the mode of
settling labor-management disputes by which the parties select a competent,
trained and impartial person who shall decide on the merits of the case and
whose decision is final, executory and binding.
19.
What are the functions of
VA?
Answer: (1) a process
for the orderly disposition of disputes and (2) a foundation for stable
labor-management relations.
20.
How about compulsory
arbitration, what does it mean and when is this resorted to?
Answer: the process of settlement
of labor disputes by a government agency which has the authority to investigate
and to make an award which is binding on all the parties, and as a mode of
arbitration where the parties are compelled to accept the resolution of their
dispute through arbitration by a third party
21.
Is there an overlapping of
jurisdiction between the Labor Arbiter and the Voluntary Arbitrator? Please
explain.
Answer: No. LA for ULP while VA for
CBA
22.
When should the Labor
Arbiter take cognizance of termination disputes?
Answer: employment termination
disputes arising from CBA or personnel policy implementation are cognizable by
a voluntary arbitrator
23.
When is ULP under the
jurisdiction of the VA?
Answer: Under Art. 262, Gross Violations or ULP cases are
allowed to be submitted to a voluntary arbitrator.
24.
What are the other cases
cognizable by the VA?
Answer:
1. Voluntary arbitrators also have exclusive and original jurisdiction to hear
and decide wage distortion issues arising from the application of any wage
orders in organized establishments;
2.unresolved
grievances arising from the interpretation and implementation of the
productivity incentive programs under R.A. 6971.
25.
How is Voluntary Arbitration
initiated?
Answer: 1) a Submission or 2) by a
Demand or Notice invoking a collective agreement arbitration clause. Sometimes
both instruments are used in a case.
26.
What is the extent of the
Arbitrator’s authority? Please discuss the ruling in the case of Sime Darby
Philippines vs Magsalin (found in your book)
Answer: Contract limits his
authority. In the case the Court ruled, the parties’ agreement is to arbitrate
but no indication at all that the parties to the arbitration agreement regarded
"the issue of performance bonus" as a two-tiered issue, only one tier
of which was being submitted to arbitration.
27.
When is there unauthorised
amendment or alterations of the arbitral award?
Answer:
28.
What is the procedure before
the voluntary arbitrator or panel of voluntary arbitrators?
Answer:
29.
Is a voluntary arbitrator’s
decision subject to a motion for reconsideration? Explain briefly.
Answer: No. Article 262-A providing
for a period of ten calendar days before the VA decision or award becomes final
and executory.
30.
Can a petition for
certiorari under rule 65 applicable for decisions of VA? If yes, how? if no,
what is the mode of appeal then? If your answer is no, is the rule absolute?
Answers: No, voluntary arbitrator by
the nature of her function’s acts in a quasi-judicial capacity. Mode of Appeal
is Rule 43. Yes, it is absolute,
31.
Under Article 276, it
provides that the decision shall be considered final and executory after 10
calendar days. However, you may remember
that in your civil procedure, you learned that a decision becomes final and
executor after 15 days. How will you
resolve the apparent conflict on the period of appeal?
Part 1.
Regulations and Limits of Strike and Lockouts
1.
Is
the right to organize the same with the right to engage in concerted actions?
Answer: NO. Right to organize is to form a union that will
represent the employees for CBA etc. while right to engage in concerted actions
is the right of the employee to have an activity which is well planned and be accomplished
by people by acting together. (e.g. right to strike)
2.
When
is an action considered as “concerted”?
Answer: When an activity is planned and accomplished by people
acting together, the activity is said to be "concerted."
3.
What
is a strike? Is strike necessary?
Answer:
A strike has been defined as a cessation of work by employees in an effort to
get more favorable terms for themselves, or as a concerted refusal by employees
to do any work for their employer, or to work at their customary rate of speed,
until the object of the strike is attained by the employer's granting the
demanded concession. Yes. Because it is considered the most effective weapon of
labor in protecting the rights of employees to improve the terms and conditions
of their employment
4.
What
are the characteristics of strike?
Answer: A strike has the following characteristics:
(1) there must be an established relationship between
the strikers and the person or persons against whom the strike is called;
(2) the relationship must be one of employer and
employee;
(3) the existence of a dispute between the parties
and the utilization by labor of the weapon of concerted refusal to work as a means
of persuading, or coercing compliance with the working men's demands;
(4) the contention advanced
by the workers that although work ceases, the employment relation is deemed
to continue albeit in a state of belligerent suspension;1
(5) there is work
stoppage, which stoppage is temporary;
(6) the work stoppage is
done through concerted action of the employees;
(7) the striking
group is a legitimate labor organization and, in case of bargaining
deadlock, is the employees' sole bargaining representative.
5.
What
is a lockout? What are the similarities of strikes and lockouts? What are their
differences?
Answer:
it is the temporary refusal of any employer to furnish work as a result of an
industrial or labor dispute. Both connote temporary stoppage of work. The
difference is in the identity of the doer. Strike is done by employees
or labor union while lockout is resorted to by an employer.
6.
Strikes/lockouts
may be caused within by a collective bargaining deadlock or an unfair labor practice. Please illustrate deadlock strike and an ULP
strike.
Answer: Strike/Lockout may be caused either by a collective
bargaining deadlock or an unfair labor practice act. ULP STRIKE one called to protest against the
employer’s acts of unfair labor practice enumerated in Article 248 of the Labor
Code, as amended, including gross violation of the collective bargaining
agreement (CBA) and union busting.
7.
Why
is a lockout considered as valid?
Answer:
8.
Please
enumerate the kinds of strikes and explain each briefly.
Answer:
As
to Extent
(a) General
- extends over a whole community, province, state or country.
(b) Local or particular
- in a particular enterprise/locality, or occupation only
Nature
of the Act
(a) Strike proper
(b) Sit-down strike
- "when a group of employees or others interested in obtaining a certain
objective in a particular business forcibly take over possession of the
property of such business, establish themselves within the plant, stop its
production and refuse access to the owners or to the others desiring to work.”
(c) Partial or quickie
strike - known as "quickie" strike,
takes the form of intermittent, unannounced work stoppage, including slowdowns,
unauthorized extension of rest periods, and walkouts for portions of a shift or
for entire shifts
Degree
of Employee Interest
(a) Primary strike
- one declared by the employees who have a direct and immediate interest,
whether economic or otherwise, in the subject of the dispute, which exists
between them and their employer.
(b) Secondary strike
- refers to a coercive measure adopted by workers against an employer connected
by product or employment with alleged unfair labor conditions or practices
(c) Sympathetic strike -
absence of the connection between employment and product
Purpose
or Nature of Employee Interest
(a) Economic strike -
is intended to force wage and other concessions from the employer, which he is
not required by law to grant
(b) Unfair labor
practice strike - called against the unfair labor practices
of the employer, usually for the purpose of making him desist from further
committing such practices
9.
Is
a sympathetic strike valid? Why or why not? How about a welga ng bayan?
Answer: Valid strike presupposes a labor dispute. Hence,
sympathetic or sympathy strike is illegal because one in which the striking
employees have no demands or grievances of their own, but strike for the purpose
of directly or indirectly aiding others, without direct relation to the
advancement of the interest of the strikers.
Welga ng
bayan is likewise illegal because though in the nature of a general strike
however it also extended sympathetic strike
10. When is a strike considered
as premature?
Answer:
a.
it was declared without giving the manager
or Board of Directors, who were in another place, reasonable time within which
to consider and act
on the demands of the union, the nature of which were such that no
possible action could be taken by the officials to whom they were submitted.
b.
the petitioners went on strike, knowing
their demands could not be acted upon by the Treasurer of the company in the
absence of its President who was then in the United States and they did not
wait until their demands could be transmitted to said president and acted upon
by him.
c.
despite the attention given by the company
to the union's demand for the dismissal of its foreman for an alleged assault,
the company even asking the Fiscal to reopen the case after he had dropped it,
the laborers went on strike without awaiting the result of the Fiscal's
investigation of the case.
d.
where it was called before the expiration of
the six-day period granted by the Conciliation Service to the employer within
which to answer the union's demands
11. What are the protection
given by law to the right to strike?
Answer: The right to strike is given the following protection:
a.
it is generally not subject to labor
injunction or restraining order;
b.
employees may not be discriminated against
merely because they have exercised the right to strike;
c.
the use of strike-breakers is prohibited;
d.
mere participation in a strike does not
sever the employment relationship.
12. Supposing after 10 days of striking,
the Employer issued a return to work order for the striking employees which the
latter ignored. Can the Employees be
dismissed on the ground of refusal to follow the order given by the employer?
Why or why not?
Answer: No. employer cannot terminate their employees however
they will not be entitled to salary.
13. During the strike, what is
the status of the striking employees? Is the striking employee entitled to
salary and wage?
Answer: It has long been recognized by law that the relationship
existing between employer and employee is not necessarily terminated by a
strike. Depends, if the employees failed to agree the employees stop their
work, a 'strike' is on. They are no longer working and receiving wages.
14. The first factor in order to
consider whether the strike is legal or not is whether such is contrary to a
specific prohibition of law. Could you
give an example of a provision of the law prohibiting strikes?
Answer: Government employees has the right to organized but they
do not have the right to strike
15. What are the procedural
requirements that are observed in strike/lockout?
Answer: These are mentioned in Article 263 and the Implementing
Rules, namely: filing of notice of strike, observance of cooling-off period,
taking of strike vote, and observance of the seven-day strike-vote-report
period.
16. Are these requirements
mandatory? What will be the effect is there is non compliance?
Answer: Mandatory. Failure to comply with the aforesaid
requirements makes the strike illegal. Consequently, the officers of the union
who participated therein are deemed to have lost their employment status
17. Who, when and where should
the notice of strike/lockout be filed?
Answer: Only a legitimate (registered) labor organization can
legally hold a strike; should be filed with the Department of Labor and
Employment, specifically the regional branch of the National Conciliation and
Mediation Board, copy furnished the employer or the union, as the case may be;
If the reason for the intended strike is ULP by the employer, the notice should
be filed by the duly recognized or certified bargaining agent. If the
bargaining unit involved has yet no bargaining agent, then the notice may be
filed by even an unrecognized labor union, provided the union is duly
registered.
If the reason for the intended strike is bargaining
deadlock, only the bargaining union has the legal right to file a notice of
strike.
18. What are the contents of the
notice to strike/lockout?
Answer: the names and addresses of
the employer and the union involved, the nature of the industry to which the
employer belongs, the number of union members and of the workers in the
bargaining unit, and such other relevant data as may facilitate the settlement
of the dispute, such as a brief statement or enumeration of all pending labor
disputes involving the same parties
19. What is a cooling off
period? Why is there need for a cooling-off period?
Answer:
a time gap is required to cool off tempers between the filing of notice and the
actual execution of strike (or lockout). The cooling-off period is thirty days
in case of bargaining deadlock and fifteen days in case of unfair labor
practice; Because during this time NCMB mediates and conciliates the parties.
20. How is the strike vote
conducted? What is its purpose?
Answer:
a.
taken by secret balloting, in meetings or
referenda specially called for the purpose.
b.
regional branch of the Board may, at its own
initiative or upon request of any affected party, supervise the conduct of the
secret balloting.
c.
union or the employer shall furnish the
regional branch of the Board the notice of meetings referred to at least
twenty-four (24) hours before such meetings as well as the results of the
voting at least seven (7) days before the intended strike or lockout, subject
to the cooling-off period.
d.
decision to declare a strike requires the
secret-ballot approval of majority of the total union membership in the
bargaining unit concerned
e.
needed vote is majority of the total union
membership, not just majority of the members present in the meeting or
referenda.
21. What is the needed vote in
order to strike?
Answer: The needed vote is
50 percent plus one of the total union memberships.
22. When should the result of
the strike vote be reported to the NCMB? Why is there a need for the reporting?
Answer: At least seven days prior to the intended date of strike
ensures that a strike vote was, indeed, taken. intended to give the Department
of Labor and Employment an opportunity to verify whether the projected strike
really carries the imprimatur of the majority of the union members
23. Are the requirements
mandatory? What is/are the effect/s if there is noncompliance? Please discuss
it in line with the case of National Federation of Sugar Workers vs Ovejera.
Answer: Yes. Non-submission means it is illegal. As discussed in
the Ovejera case, “The submission of the report gives assurance that a strike
vote has been taken and that, if the report concerning it is false, the
majority of the members can take appropriate remedy before it is too late.”
24. Are there instances when the
cooling off period may be disregarded?
Answer: There are no instance that the cooling off period may be
disregard. As held in the case of Ovejera based from the language of the law,
the period is mandatory.
25. Supposing the issue has
already been submitted for arbitration or meditation, if the union still
continue with striking, what would be the effect? Please discuss in line with
the case of Philippine Airlines vs Sec of Labor.
Answer: As held in the case, the strike would be deemed illegal. During
the pendency of preventive mediation proceedings, no strike could be legally
declared. the company has a right to take disciplinary action against the union
officers who took part in it, and against any union members who committed
illegal acts during the strike, pursuant to Article 264 of the Labor Code.
26. In a case where a provision
on the CBA states that for “alleged ULP on the part of either of the party,
there will be no strikes, lock out or any prejudicial action until the question
or grievance is resolved by the proper court if not settled through the
grievance procedure as herein outlined” supposing the Union still proceeding
with the strike alleging that the said provision is unfair and illegal, hence
there is no need to submit to the grievance procedure as outlined in the
CBA. Is the stand of the Union valid?
Can they strike even without adhering to the grievance procedure by simply
claiming it as illegal or unfair?
Answer: No. In a case held by the Supreme Court with similar
facts like in the case at bar, the SC upheld the legality of that kind of
stipulation. ; No. that would tantamount to illegal strike, The Supreme Court
said, “The main purpose of the parties in entering into a collective bargaining
agreement is to adopt a procedure in the settlement of their disputes so that
strikes may be prevented. This procedure must be followed in its entirety if it
is to achieve its objective.”
27. Can the employer terminate
employees during the cooling off period or during conciliation? Why or why not?
Answer: No. because Section 6, Rule XIII of the Rules and
Regulations Implementing the Labor Code, pertinently reading as follows:
“During the proceedings, the parties shall not do any
act which may disrupt or impede the early settlement of the dispute. They are
obliged, as part of their duty to bargain collectively in good faith, to
participate fully and promptly in the conciliation proceedings called by the
Bureau or the Regional Office.”
28. What are issues that are
considered strikeable? What are those which are non-stikeable?
Answer:
a.
two strikeable grounds or causes that may
validly support a strike: (1) collective bargaining deadlock and (2) employer's
unfair labor practice. A strike not based on any of these two causes is
necessarily tainted with illegality.
b.
Accordingly, the following are
non-strikeable issues:
i.
inter-union or intra-union disputes
ii.
violation of labor standards law, unless
Article 248, particularly clauses (c), (f), or (i), is also violated
iii.
any issue involving wage distortion;
iv.
cases pending at the DOLE regional offices,
BLR, NLRC or its regional branches, NWPC and its regional wage boards, office
of the Secretary, Voluntarily Arbitrator, Court of Appeals, or the Supreme
Court
v.
execution and enforcement of final orders,
decisions, resolution or awards in no. 4 above.
vi.
any issue covered by a no. strike commitment
in a duly executed CBA, (cf: NCMB, Manual of Procedures in the settlement and
Disposition of Conciliation and Preventive Mediation Cases)
29. Please explain the Conversion
Doctrine.
Answer: The doctrine states that a strike may start as economic
and, as it progresses, become ULP, or vice-versa.
30. Supposing the union held a
strike because the company did not agree with their demands, which are actually
beyond the capacity of the company. Will
the stike be considered as illegal? Why or why not?
Answer: No. Legality of Strike Not Dependent Upon Ability of
Management to Grant Demands. Though there are adequate instrumentalities which
may be resorted to in case of excesses.
31. Please explain the “good
faith strike” doctrine. Supposing there
was really no ULP, but the union believed in good faith that there was, can the
strike be considered as legal or illegal?
Answer: No. as held in a
case held by the Supreme Court, “Such strike is valid, for clearly it was
declared by the union as a measure of self-defense and protection against the
employer's unfair labor practices.”
32. Is belief in good faith
enough to deem a strike valid?
Answer:
Yes. It is not even required that there be in fact an unfair practice committed
by the employer. It suffices if such a belief in good faith is entertained by
labor as the inducing factor for staging a strike.
33. is the union still required
to follow the procedural requirements for strike in ULP strike in good faith?
Answer: Yes. procedural steps cannot be dispensed with even if
the union believed in good faith that the company was committing an unfair
labor practice. Thus, even if the union acted in good faith in the belief that
the company was committing an unfair labor practice, if no notice of strike and
a strike vote were conducted, the said strike is illegal
34. Is recognition strike
valid/legal?
Answer: Yes. As held by
the SC, “A union-recognition-strike, as its legal designation implies, is
calculated to compel the employer to recognize one's union, and not the other
contending group, as the employees' bargaining representative to work out a collective
bargaining agreement despite the striking union's doubtful majority status to
merit voluntary recognition and lack of formal certification as the exclusive
representative in the bargaining unit.”
35. Can a minority union strike?
Answer:
A minority union cannot demand collective bargaining with the employer because
such right properly belongs to the union that commands the majority. Moreover,
the defeated union cannot lawfully undertake a strike against the employer; if
one is being done, it must come to a halt.
36. Can the union strike in
order to put pressure on the company to terminate an employee?
Answer: No. if a strike is declared for a trivial, unjust or
unreasonable purpose, or if it is carried out through unlawful means, the law
will not sanction it and the court will declare it illegal, with the adverse
consequences to the strikers.
37. Are inter union and intra
union dispute strikeable?
Answer: No. Article 226, Bureau of Labor Relations exercises
original and exclusive authority to act on all inter-union and intra-union
disputes. The dispute does not involve the employer. Since the dispute is not
with the employer, the dispute cannot justify a work stoppage.
38. What are the prohibited
activities during a strike?
Answer:
It states that "no person engaged in picketing shall —
(a) commit any act of
violence, coercion or intimidation, or
(b) obstruct the free
ingress to or egress from the employer's premises for lawful purposes, or
(c) obstruct public
thoroughfares
39. Supposing the violence came from
both sides - union and employer, will the strike be considered as invalid?
Answer:
Yes. Where violence was committed on both sides during a strike, such violence
cannot be a ground for declaring the strike as illegal
40. Can the union as a whole be
responsible for the violent act of one member?
Answer: Depends. A strike otherwise valid, if violent in
character, may be placed beyond the pale. Care is to be taken, however,
especially where an unfair labor practice is involved, to avoid stamping it
with illegality just because it is tainted by such acts. To avoid rendering
illusory the recognition of the right to strike, responsibilities in such a
case should be individual and not collective. A different conclusion would be
called for, of course, if the existence of force while the strike lasts was
pervasive and widespread consistently and deliberately resorted to as a matter
of policy.
41. What can be considered as
national interest cases? Why is there an automatic injunction and return to
work order in national interest cases? Please give examples of “national
interest” industries.
Answer: if the employer is engaged in an undertaking affected
with public interest as one of the largest manufacturers of products. The
compelling consideration is the fact that a prolonged strike or lockout is
inimical to the national economy; To protect the economy; large manufactory of
products etc., that if there are prolonged strikes it would turn inimical and
would put the national economy risk.
42. Is prior notice to the Secretary of Labor
necessary for him to assume jurisdiction?
Answer: The discretion to assume jurisdiction may be exercised by
the Secretary of Labor and Employment without the necessity of prior notice or
hearing given to any of the parties’ disputants. The rationale for his primary
assumption of jurisdiction can justifiably rest on his own consideration of the
exigency of the situation in relation to the national interests
43. Please discuss the
procedural details in assumption of jurisdiction by the Sec of Labor.
Answer: The rationale for his primary assumption of jurisdiction
can justifiably rest on his own consideration of the exigency of the situation
in relation to the national interests.
The Labor Minister may immediately take action where a
strike has effectively paralyzed a vital industry.
44. What are certified labor
disputes?
Answer: Are cases certified [or referred] to the Commission for
compulsory arbitration under Article 263 (g) of the Labor Code dealing about
"national interest" cases.
45. What is the effect if the
labor dispute has been issued a certification order by the Sec of Labor?
Answer: there will be a compulsory arbitration.
46. If there is defiance of the
certification order by the Sec of Labor?
Answer: Non-compliance with the certification order of the
Secretary of Labor and Employment shall be considered as an illegal act
committed in the course of the strike or lockout, and shall authorize the
Commission to enforce the same under pain of immediate disciplinary action,
including dismissal or loss of employment status or payment by the locking-out
employer of backwages, damages and/or other affirmative relief, even criminal
prosecution against the liable parties
47. What would happen to the
employees who defied the RTWO?
Answer: Returning to work in this situation is not a matter of
option or voluntariness but of obligation. The worker can of course give up his
work, thus severing his ties with the company, if he does not want to obey the
order, but the order must be obeyed if he wants to retain his work even if his
inclination is to strike
48. Supposing during the strike,
several members and officers of the union was accused of committing illegal
acts during the strike, which is now pending before the NLRC. Subsequently the Sec of Labor assumed jurisdiction
and a RTWO was issued. Can the employer
exclude the officers and members with pending cases for the illegal acts from
returning to work?
Answer: No. The rationale for the
prohibition is that once jurisdiction over the labor dispute has been properly
acquired by the competent authority, such jurisdiction should not be interfered
with by the application of coercive processes of a strike.
49. Can the Return to work be
only “payroll reinstatement”?
Answer: No. The Court interprets third sentence of Article 263(g)
to mean actual, not payroll, readmission to the employees' positions.
50. Why is article 278 (g)
considered as extraordinary and preemptive power?
Answer: Yes. to protect
the National Economy.
51. Please discuss the procedure
for certified cases.
Answer:
a)
Unless
there is a necessity to conduct a clarificatory hearing, the Commission shall
resolve all certified cases within thirty (30) calendar days from receipt by
the assigned Commissioner of the complete records, which shall include the
position papers of the parties and the order of the Secretary of Labor and
Employment denying the motion for reconsideration of the certification order,
if such motion has been filed.
b)
Where
a clarificatory hearing is needed, the Commission shall, within five (5)
calendar days from receipt of the records, issue a notice to be served on the
parties through the fastest means available, requiring them to appear and
submit additional evidence, if any.
c)
Notwithstanding
the necessity for a clarificatory hearing, all certified cases shall be
resolved by the Commission within sixty (60) calendar days from receipt of the
complete record.
d)
No
motion for postponement or extension shall be entertained.1 Execution of
Judgment in Certified Case. — Upon issuance of the entry of judgment, the
Commission, motu proprio or upon motion by the proper party, may cause the
execution of the judgment in the certified case
52. Can the Sec of Labor render
an arbitral award?
Answer:
Yes. The Secretary of Labor's statutory power
under Article 263(g) of the Labor Code to assume jurisdiction over a labor
dispute in an industry indispensable to the national interest, and, to render
an award on compulsory arbitration
53. Is the award and order by
the Sec of Labor subject to judicial review?
Answer: Yes. Under the constitutional mandate, every legal power
of the Secretary of Labor under the Labor Code, or, for that matter, any act of
the Executive, that is attended by grave abuse of discretion is subject to
review by this Court in an appropriate proceeding.
54. If the CBA provides for a no
strike or no lockdown clause, is the stipulation considered as valid? When is
it allowed? When is it not allowed?
Answer: A no-strike-no lockout stipulation generally deserves
respect by the parties to the CBA and by the labor authorities. Such
stipulation applies even to a deadlock in renegotiating the economic provisions
of the CBA. Where the CBA stipulates that disputes between the parties should
be resolved through a grievance machinery, including voluntary arbitration, a
notice of strike filed by the union violates that agreement; No-Strike Clause
Not Binding Upon Newly Certified Bargaining Agent
55. What is improved offer
ballot? When is this resorted to?
Answer: is a device to stop the work stoppage; By the
improved-offer balloting device, the strike or lockout may end peaceably,
silently, without anyone losing face because no one will appear defeated.
STRIKES AND LOCK OUT
Part 2
1.
Is
picketing the same with striking? If yes how? If not, what is picketing?
Answer: No. Picketing involves the presence of striking workers
or their union brothers who pace back and forth before the place of business of
an employer considered "unfair to organized labor," in the hope of
being able to persuade peacefully other workers not to work in the
establishment, and customers not to do business there.
2.
Is
labor dispute necessary for a picket?
Answer: Yes. The right to
picket is a means of communicating the facts of a labor dispute.
3.
Is
picketing allowed? If yes, what acts can make it illegal?
Answer: Yes. it is a part of the freedom of speech guaranteed by
the Constitution; If the exercise is be done outside the bounds of law.
4.
The
use of violence and intimidation makes the picket unlawful. What constitutes unlawful intimidation and
violence?
Answer: “What constitutes unlawful intimidation depends on all
the circumstances. Force threatened is the equivalent of force exercised. There
may be unlawful intimidation without many direct threats or overt acts of
violence. Words or acts which are calculated and intended to cause an ordinary
person to fear an injury to his person, business, or property are equivalent to
threats.”
5.
If
there is misrepresentation during the picket (e.g. placards contain false
statement), what would be the effect?
Answer: untruthful picketing is unlawful picketing. Permissible
activities on the part of picketers do not include misrepresentation. This is
in accord with the general rule that the means employed in aid of a strike must
be free from falsehood or defamation
6.
Could
you give other examples of “other concerted activities’?
Answer: signed and published letter of employees to their
employer voicing their grievances.
7.
What
is boycott? When is boycott considered as lawful? When is it unlawful?
Answer: Boycott has been defined as an attempt, by arousing a
fear of loss, to coerce others, against their will to withhold from one
denominated "unfriendly to labor" their beneficial business
intercourse.; Boycott may be lawful or unlawful depending on the means and
methods employed, and the ends intended to be accomplished. Its lawfulness may
also depend upon whether it is used against the industrial antagonist directly
or against an outsider because of his influence on or connection with the
industrial antagonist; boycott is illegal where its purpose is to require an
employer to coerce his employees to pay their back dues to the union or
discharge them, or to compel the payment by an employee of a fine or other
penalties, or to compel an employee to refrain from working, or to compel
employment of more help than is necessary, or to compel one to sign a contract,
or to compel an employer to refrain from issuing new process or machinery.
8.
What
is slowdown?
Answer:
it is a method by which one's employees, without seeking a complete stoppage of
work, retard production and distribution in an effort to compel compliance by
the employer with the labor demands made upon him
Part 3
1.
If
an employee participated in a strike which was declared as illegal for not
having complied with the procedure, can this be a ground for dismissal?
Answer: No. in the earlier case of Bacus and Progressive Workers
cases the Court had already said that a union member may not be held
responsible for the union's illegal strike on the sole basis of such membership
or on account of his having voted affirmatively for the holding of the strike
later declared illegal. Further, participation in a strike that turned out to
be illegal does not result in their loss of job.
2.
Supposing
the employee who participated in the illegal act is a union officer, will your
answer be the same? Please explain
Answer: Yes. Article 264
makes a distinction between workers and union officers who participate in a
strike. An ordinary striking worker cannot be terminated for mere participation
in an illegal strike. There must be proof that he committed illegal acts during
a strike.1 A union officer, on the other hand, may be terminated from work when
he knowingly participates in an illegal strike, or when he commits an illegal
act during a strike.
3.
What
are considered as “illegal acts” during a strike? Is the enumeration exclusive?
Answer: (1) Violation of Article 264(e) of the Labor Code x xx
(2) Commission of crimes and other unlawful acts in
carrying out the strike; and
(3) Violation of any order, prohibition, or injunction
issued by the DOLE Secretary or NLRC in connection with the assumption of
jurisdiction/ certification Order under Article 263(g) of the Labor Code;
enumeration is not exclusive and it may cover other breaches of existing laws.3
(Anyone, in fact, who knowingly commits illegal acts with or without a strike
can be held liable.)
4.
Should
all the union officers and/or leaders be dismissed for staging an illegal
strike? explain.
Answer: Yes. "the
union officers had the duty to guide their members to respect the law. Instead,
they urged them to violate the law and defy the duly constituted authorities.
Their responsibility is greater than that of the members.
5.
During
an illegal strike, does the participation of a union officer be to be
individually identified to justify his dismissal?
Answer: Yes. individual
strikers committing the illegal acts must be identified. Non-compliance will not
enough to justify their dismissal and A union officer carries heavier
responsibilities than a union member does.
6.
Please
explain the case of Gold City Integrated Service Inc. vs NLRC as regards the
issue of who shall decide as to whether a union officer or worker will loss his/her
employment status.
Answer: the case states that union officers and worker xxx
"may be declared to have lost his employment status.” The provision, by
the word “may” grants the employer the option of declaring a union officer who
participated in an illegal strike as having lost his employment.
7.
Is
it necessary that the strike be declared as illegal before a union member or
officer be dismissed from employment? IS
the rule absolute? If no, what are the exceptions?
Answer: Declaration of Illegality of Strike Not a Prerequisite to
Dismissal of Illegal Strikers. Not absolute. When dismissals of individual
respondents were due to infractions of company rules and regulations, the
alleged infractions actually arose from their participation in the strike. This
is crystal clear from the charges leveled against the union officers, such as
"active participation in the illegal work stoppage," "disruption
of company operations resulting [in] losses," "violation of the 'NO
STRIKE' clause of the existing CBA,"
8.
Should
it be found that the union member committed illegal acts which merit dismissal,
can the dismissal be done outright without compliance with procedural
requirements?
Answer: No. still it must follow the procedural requirement in
dismissing the employees otherwise it will tantamount to illegal dismissal.
9.
If
the strike is considered as a good faith strike, may the employees be
dismissed? Please discuss the consequence of a good faith strike in line with
the case Ferrer vs CIR.
Answer: A strike may be 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
10. Supposing the striker was
order to be report back to work, but failed to do so without justifiable
reason, what is the effect?
Answer: In East Asiatic Co., Ltd., et al vs. CIR, et al, G.R No.
L-29068, August 31, 1971, the Court had occasion to rule that a striker who
failed to report for work when one had the opportunity to do so waived thereby
his right to reinstatement. “failure to report for work without justifiable
reason with the petitioners therein, we are constrained to declare them to have
forfeited their right to reinstatement."
11. Supposing while on strike,
the employee found another employment, is he still entitled to reinstatement?
Why or why not?
Answer: The answer is yes. In the leading case of Cromwell
Commercial, the Supreme Court answered in this wise: the mere fact that
strikers or dismissed employees have found such employment elsewhere is not
necessarily a bar to their reinstatement.
12. What is the effect of
discrimination in readmission of strikers?
Answer: it will tantamount to unfair labor practice.
13. Are strikers entitled to
backwages during the period of strike? Please discuss exhaustively.
Answer: As a general rule, no backwages in strikes. In an
economic strike, the strikers are not entitled to backwages on the principle
that "a fair day's wage" accrues only for a "fair day's
labor." This has been established even in pre-Industrial Peace Act era.
In the case of San Miguel Brewery, Inc.
vs. National Labor Union, et al, “Upon this consideration and based on the
equitable tenet of a fair day's wage for a fair day's labor, this demand falls
of its own weight and must be, as it is hereby, denied.”
In the case of Federacion Obrera de
Filipinos (FOF) vs. Philippine Rubber Projects Co., Inc., “not having performed
any work during the strike, they should not be paid any wage or salary
therefor. For this reason, this demand is hereby denied.”
14. Discuss the issue of
entitlement of backwages of “voluntary strikers” and “involuntary strikers”.
Answer: In voluntary
strikers, the strikers should not be entitled to pay during the period they
voluntarily absented themselves from work while in “involuntary strikers” where a laborer absents himself from work because
of a strike or to attend a conference or hearing in a case or incident between
him and his employer, he might seek reimbursement of his wages from his union
which had declared the strike or filed the case in the industrial court. Or he
might have his absence from his work charged against his vacation leave.
15. Who has the discretion in
awarding backwashes in ULP strike?
Answer: Even after a finding of ULP by the employer, award of
backwages rests on the Court's discretion.
16. Please discuss and
differentiate the Basco Ruling, Escario Ruling, Abraria Ruling and HSBC Ruling
as regards payment of backwages.
Answer:
17. Does the employer have the
right to require the striking employees to stop the strike and return to work?
Answer: Yes. employer have the right to require the
striking employees to stop the strike and return to work. strikers' offer to
return to work should be unconditional so that they will be entitled to
backpay. To be effective so as to entitle the strikers to backpay, the offer
must have been unconditional. The strikers must have offered to return to work
under the same conditions under which they worked just before their strike so
that the company's refusal would have placed on the latter the blame for their
economic loss.
18. Supposing the striking
employees refused to obey the employer, what would be the effect?
Answer: The strike becomes a prohibited activity and the strike
becomes illegal. The union officers or members will be deemed dismissed from
employment.
19. PLEASE READ
AND MEMORIZE THE RULES IN DISMISSAL OF STRIKERS FOUND ON PAGE 716.
20. During the strike, can the
employer have hired temporary/replacement employees?
Answer:
Yes. the employee may during the strike when the company direly needed their services.
Though they are only temporary in nature.
21. Is the labor organization
label for illegal acts of its officers and members during the strike?
Answer: Yes. Labor unions are liable for the unlawful acts of
their officers or members which they have authorized or adopted. However, labor
unions are not liable in damages for the unauthorized or unratified unlawful
acts of their officials nor are they responsible for the unlawful acts of
individual members which neither their officers nor committees have directed,
aided, or approved
22. What are the civil
liabilities, if any, of the labor organization, members and officers?
Answer: For labor organization, ny lawful means to attain their
legitimate objects will not make them or their members liable in damages to
those who may be directly or indirectly injured by such efforts. If any injury results to anyone, it will be
considered merely incidental and damnum absque injuria. Thus, where a
combination of laborers is recognized as legal and a strike is lawful, no liability
arises because of injuries incidental thereto. However, labor unions may be
held liable for resulting damages where they attempt to attain their legitimate
objectives by unlawful means
Acts of labor unions and their members are unlawful and
tortious, the officers participating in such unlawful actions are liable for
the resulting damages irrespective of the fact that they were acting in behalf
of the union. Officers of labor unions are also liable for unlawful and
tortious acts done pursuant to a conspiracy to which unions are a party.
23. Does the rule on vicarious
liability apply to damages as a result of illegal acts of the strikers?
Answer: No. Union officers may not be vicariously held
liable for illegal acts of strikers. The rule of vicarious liability has, since
the passage of Republic Act 875, been expressly legislated out.
24. If the EE and ER are in pari
delicto, what would be the effect?
Answer:
25. What is the requirement for
arrest and detention of union members and officers?
Answer: Except
on grounds of national security and public peace or in case of commission of a
crime, no union members or union organizers may be arrested or detained for
union activities without previous consultations with the Secretary of
Labor.
P.S.
Please just read Article 282 - 292.
POST EMPLOYMENT: PART 1 and 2
1.
What
is security of tenure? Why does the Constitution protects and safeguards it?
Answer:
It is every right
of employee that no employee can be dismissed from work except for a just
or authorized cause, and only after due process. The Constitution
protects and safeguards it for the reason that mass of population are dependent
on their employment for livelihood. When a worker loss his job, his family may faces
deprivation, if not starvation. Hence, it should be protected against arbitrary
deprivation of his or her job.
2.
Under
Article 294, it provides that, “in case of REGULAR employment, the employer
shall not terminate the services of the employee except for just or authorised
cause. It also provides that it only to
employees who are considered as regular employees? How about those who are
casual or probationary?
Answer:
Though the Labor Code provides security of
tenure to regular employees only, the Constitutions provides security of
tenure for “all worker.” Hence, terminating either a casual or
probationary worker needs a valid reason and proper procedure.
3.
Does
a manager or supervisor also enjoys security of tenure? What is the position is
based on trust and confidence of the employer, how would the right of the
employee to security of tenure be protected?
*at this
point, please recall your learnings on how to determine ER-EE relationship
since post termination provisions will only apply if there is an ER-EE
Relationship.
Answer:
Yes, manager or supervisor also enjoys
security of tenure as the Constitution provides. As a general rule, employers are allowed a
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. However,
despite being a managerial employee and may be dismissed by loss of confidence,
he or she is not excluded from the constitutional protection of security of
tenure. Hence, the employer must justify the ground for loss of confidence
to dismiss the manager or supervisor.
4.
What
is the test or primary consideration in determining the regular employment?
Answer:
The primary
standard to determine a regular employment is the reasonable connection between
the particular activity performed by the employee in relation to the usual
business or trade of the employer. The test is whether the former is
usually necessary or desirable in the usual business or trade of the employer.
What determines regularity or casualness is not the employment contract,
written or otherwise, but the nature of the job. If the job is usually
necessary or desirable to the main business of the employer, then employment is
regular.
5.
What
are the two kinds of regular employment?
Answer:
(1) regular employees by
nature of work, and
(2) regular employees by
years of service.
Or
two kinds of regular
employees as (1) those who are engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer, and (2)
those who have rendered at least one (1) year of service, whether continuous or
broken with respect to the activity in which they are employed. (
6.
Supposing
the employee is being paid on a per piece basis, can they be considered as
regular employees?
Answer:
Yes. Depending
to the circumstance. If the employee’s work, who is being paid per piece basis
or pakyawan basis, is necessary to the business of its employer.
7.
How
do we determine if the work/tasks done by the employee is necessary to the
business of the employer? What factors can we use? Could you illustrate?
Answer:
The test is whether the job is necessary or desirable in the
usual business or trade of the employer. To illustrate, ABC Company, is a
domestic corporation whose primary business is the production and manufacturing
of Cellular phone while DE is an employee of the aforesaid on a paid per piece
basis in assembling some crucial parts of the Cellular phone which cannot be
done the machine. In the case, assembling is crucial and essential to the
business. Thus, it is necessary to the business of the employer.
8.
Is
perpetual employment allowed? Why or why not?
Answer:
No. The concept of perpetual employment is
contrary to public policy and good customs, as it unjustly forbids the employer
from terminating the services of an employee despite the existence of a
just or valid cause.
9.
Supposing
the employee was performing masonry works for a construction company. Such employee is only 6 months and 1 day into
service, can we consider him as a regular employee?
Answer:
No. to be regular employee he or she needs at least one (1) year
employment.
10. How about if the employee is
performing janitorial services in the construction company serving for 6 months
and 1 day, can he be considered as a regular employee? Supposing that employee
already served for 1 year, can he be considered as a regular employee?
Answer:
No. to be regular employee he or she needs at least one (1) year
employment. I would change my answer to yes. As provided by law, an employee
who rendered at least one year employment can be considered regular whether
continuous or not.
11. Can regular jobs be
contracted out? Please discuss the ruling in the case of Serrano vs Isetann.
Answer:
Yes or No. it is Prohibited, if, contracting out a job, work or
service when not done in good faith and not justified by the exigencies of the
business and the same results in the termination of regular employees and
reduction of work hours or reduction or splitting of the bargaining unit.
However, the same are allowed, if, when done in good faith and justified by
exigencies of the business.
In Serrano vs. Isetann, where the management abolished some
regular positions and instead hired an independent contractor, the court cited the several cases that in the
conclusion it states that, "[management of a company] cannot be denied the
faculty of promoting efficiency and attaining economy by a study of what units
are essential for its operation. To it belongs the ultimate determination of
whether services should, be performed by its personnel or contracted to outside
agencies. [While there] should be mutual consultation, eventually deference is
to be paid to what management decides. " Consequently absent proof that
management acted in a malicious or arbitrary manner the Court will not
interfere with the exercise of judgment by an employer.”
In
the Serrano ruling, efficiency and economical operations are therefore
recognized as valid, lawful reasons for contracting out jobs, even those being
done by direct-hire regular employees.
12. Suppossing all regular jobs
were contracted out, is it valid? Please discuss the case of Wack Wack Golf and
Country Club vs NLRC.
Answer:
Large portion of the Wack Wack Golf and Country Club was
destroyed by fire, the club has to suspend the operation of its Food and
Beverage department, about which it notified the DOLE and the affected
employees. But
contending that the projected suspension of operations was discriminatory, the
employees filed a notice of strike. In the conciliation proceedings before the
NCMB, the management and the union, assisted by counsel, entered into an agreement
which offered a special separation benefit or retirement package to Wack Wack
employees.
Wack Wack entered into a management contract with the Business
Staffing and Management Inc.
Was the contracting out of the complainants' jobs with BSMI
legal and valid?
Yes. They held responsible positions in the petitioner-employer,
so they presumably understood the contents of the documents they signed. There
is no showing that the execution thereof was tainted with deceit or coercion.
Further, the respondents were paid hefty amounts of separation pay indicating
that their separation from the company was for a valuable consideration. Where
the person making the waiver has done so voluntarily, with a full understanding
thereof, and the consideration for the quitclaim is credible and reasonable,
the transaction must be recognized as being a valid and binding undertaking. As
in contracts, these quitclaims amount to a valid and binding compromise
agreement between the parties which deserve to be respected.
13. What is project employment?
Is a project employee not considered as a regular employee? Supposing the
project employee is doing tasks necessary to the business of the employee, can
we consider the project employee as “regular employee”?
Answer:
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 the engagement of the employee or
where the work or service to be performed is seasonal in nature and the
employment is for the duration of the season.
14. What are the types of
project employment? Please explain briefly each.
Answer:
Firstly, a
project could refer to a particular job or undertaking that is within the
regular or usual business of the employer company, but which is distinct and
separate, and identifiable as such, from the other undertakings of the company
whilst the second one project could also refer to a particular job or
undertaking that is not within the regular business of the corporation. Such a
job or undertaking must also be identifiably separate and distinct from the
ordinary or regular business operations of the employer.
15. What is the test used in
determining if an employee is a project employee? Should the duration of the project
be determined at the onset of the employment? Supposing it was not given, what
would be the effect?
Answer:
The determining question is whether or not the "project
employees" were assigned to carry out a "specific project or undertaking,"
the duration (and scope) of which were specified at the time the employees were
engaged for that project.
Yes. duration should be specific because duration or period of a
project employment is important in resolving whether one is a project employee
or not and its absence the project employees would be deemed as regular.
16. What are the indications
that can help identify if the employment is a project employment?
Answer:
The indicator the duration or period of a project employment
because it will serve as predetermination in resolving whether one is a project
employee or not.
17. Is an employee who is a
member of a “work pool” considered as project employee or regular employee?
Answer:
Depends. an
employee in the work pool is not necessarily a regular employee; he may also be
a project employee. If project employees were listed on work pool of regular
employees, it may be considered as regular employee.
18. Is a project employee
entitled to separation pay? Is this rule absolute?
Answer:
No. Project Employees are not
entitled to Separation Pay. No. if the project itself was still
on-going and so continued to require the workers' services for its completion
and there is no showing that such services were unsatisfactory to justify their
termination; the terminated project employee is entitled to separation pay.
19. Could you distinguish the
ruling in the case of William Uy Construction vs Trinidad (GR No. 183250) and
D.M. Consunji Inc vs Jamin (GR No. 192514).
Answer:
William Uy Construction vs Trinidad (GR
No. 183250),
the court held,
The test for distinguishing a
"project employee" from a "regular employee" is whether or
not he has been assigned to carry out a "specific project or
undertaking," with the duration and scope of his engagement specified at
the time his service is contracted.[5] Here, it is not disputed
that petitioner company contracted respondent Trinidad's service by specific
projects with the duration of his work clearly set out in his employment
contracts.[6] He remained a project employee regardless of the
number of years and the various projects he worked for the company.[7]
Generally, length of service provides a
fair yardstick for determining when an employee initially hired on a temporary
basis becomes a permanent one, entitled to the security and benefits of
regularization. But this standard will not be fair, if applied to the
construction industry, simply because construction firms cannot guarantee work
and funding for its payrolls beyond the life of each project. And getting
projects is not a matter of course. Construction companies have no control over
the decisions and resources of project proponents or owners. There is no construction
company that does not wish it has such control but the reality, understood by
construction workers, is that work depended on decisions and developments over
which construction companies have no say.
D.M. Consunji Inc vs Jamin (GR No.
192514),
the court
held, Once a project or work pool employee has been: (1) continuously, as
opposed to intermittently, rehired by the same employer for the same tasks or
nature of tasks; and (2) these tasks are vital, necessary and indispensable to
the usual business or trade of the employer, then the employee must be deemed a
regular employee.
20. Who is a seasonal employee?
Is a seasonal employee considered as a regular employee?
Answer:
Seasonal employee is an employee who perform work or services
that are seasonal in nature and be employed only for the duration of one
season. Yes. Seasonal Employee are regular employee, by the nature of their
relationship with employee during off season they are considered only on leave
of absence.
21. Are “pakiao” workers
independent contractor or considered as employees?
Answer:
No. The nature of their employment, does not make the employee
as independent contractors. Pakiao workers are considered employees as long as
the employer exercises control over the means by which such workers are to
perform their work.
22. Please discuss the ruling in
Phil. Tabaco Flue-curing and Redrying Corp vs NLRC (GR No. 127395) particularly
that portion where it compared the ruling in Mecado Sr case, Manila Hotel, Gaco
and other cases as regards determination of one is a mere project employee or a
regular employee.
Answer:
In Manila Hotel Company v. CIR13 that
seasonal workers who are called to work from time to time and are temporarily
laid off during off-season are not separated from service in said period, but
are merely considered on leave until reemployed, viz.:
The nature of their
relationship x x x is such that during off season they are temporarily laid off
but during summer season they are re-employed, or when their services may be
needed. They are not strictly speaking separated from the service but are
merely considered as on leave of absence without pay until they are
re-employed.
In
Mercado, although respondent constantly availed herself of petitioners'
services from year to year, it was clear from the facts therein that they were
not in her regular employ. Petitioners therein performed different phases of
agricultural work in a given year. However, during that period, they were free
to work for other farm owners, and in fact they did. In other words, they
worked for respondent, but were nevertheless free to contract their services
with other farm owners. The Court was thus emphatic when it ruled that
petitioners were mere project employees, who could be hired by other farm
owners.
23. What is casual employment?
Answer:
Casual employment, is an employment
wherein the employee would enjoy all the benefits of regular employees,
including security of tenure, minimum wage, overtime pay and all benefits
provided for in the Code for a regular employee. However, ends upon the
contracts ends
24. Please define fixed period
employment? Is it valid? How is this different from project employment?
Answer:
It is a type of
employment that the duration of employment is fixed in the contract. Yes, Civil
code provides the principle of autonomy of will to stipulate the duration of
employment, stipulations are valid provided it is not contrary to law, morals,
good customs, public order or public policy.
25. Does a fixed period employee
also enjoy security of tenure?
Answer:
Yes. As provided by the Constitution “all employees enjoy
security of tenure.” An employee cannot be terminated without just cause.
However, upon the end of the duration of employment which is fixed in the
contract, employments end.
26. How is the ruling in Brent
School Inc vs Zamora (GR No. L-48949) different or the same from the ruling in
the case of Cielo vs NLRC (GR No. 78693)? Please include the criteria mentioned
in the Brent case under which term employment cannot be said to be in
circumvention of the law on security of tenure.
Answer:
In the case Brent
School Inc vs Zamora (GR No. L-48949), recognizes the right of an employee to
freely stipulate with his employer the duration of his engagement, it logically
follows that such a literal interpretation should be eschewed or avoided. The
law must be given a reasonable interpretation, to preclude absurdity in its
application.
However, in the case of Cielo vs NLRC (GR No. 78693), said it
is Illegal "Fixed Period Employment and clarified the Brent Ruling, because
the employee’s function is essential to the business operation of the employer.
Even if ostensibly hired for a fixed period, the employee should be considered
a regular employee of the private respondent. Hence, the fixed period was
illegal.
27. What is the effect if the
employee is retained beyond the period fixed for employment? How about the
effect of renewals of fixed period employment?
Answer:
The general rule
is that when, upon the expiration of a contract of employment for a definite
term, the employee continues to render the same services as he rendered during
the term of the contract without explicitly entering into any new agreement, it
will be presumed prima facie that he is serving under a new contract having the
same terms and conditions as the original one.
Where the
direct-hired employee is doing necessary or desirable job, the three-month
fixed term of the employment, renewed several times exceeding one
year, establishes her being a regular employee.
28. Who is a probationary
employee? What is the purpose for such type of employment? Are they entitled to
security of tenure?
Answer:
A probationary
employee under Article 282 (now 281) of the Labor Code is one who is on
trial by an employer during which the employer determines whether or not he is
qualified for permanent employment. May be lacks of one of the prescribe
qualification to be a permanent employee.
29. What are the limitations to
termination of a probationary employee?
Answer:
The employer's power to terminate a probationary employment
contract is subject to the limitations that:
(1) it
must be exercised in accordance with the specific requirements of the
contract;
(2) if
a particular time is prescribed, the termination must be within such
time and if formal notice is required, then that form must be used;
(3) the
employer's dissatisfaction must be real and in good faith, not feigned
so as to circumvent the contract or the law; and
(4) there
must be no unlawful discrimination in the dismissal.
30. Can the probation period be
for more than 6 months? If yes, in what instance/s?
Answer:
Yes. though as a general rule, an employee who is
allowed to work after a probationary period shall be considered a regular
employee. The exemption when the parties to an employment
contract may agree otherwise, such as when the same is established by company
policy or when the same is required by the nature of work to be performed by
the employee.
31. Is successive probations
allowed?
Answer:
No. An employee who is allowed to work after a probationary
period shall be considered a regular employee.
32. Supposing the employee and
employer agreed to extend the probationary period beyond 6 months, is the
agreement valid?
Answer:
Yes.
that an exempted instance wherein probation period be for more than 6 months are allowed, when
the parties to an employment contract may agree otherwise, such as when the
same is established by company policy or when the same is required by the
nature of work to be performed by the employee.
33. How is the “last day of
probation” determined? Please illustrate.
Answer:
The
Supreme Court has so far used two different computation methods in three
cases. Under the first method, a probation of, say, six months,
ends on the same date it started six months before. Under
the it second method ends 180 days from the starting date.
To illustrate, the probation was from
May 16,2020 to November 16, 2020. For the first method, it ends exactly the
same date from the start of the
probation (May 16, 2020) to the end of probation (November 16) while for the
second method, the counting of 180 days will be from May 17, 2020 to November
16, 2020.
TERMINATION OF EMPLOYMENT: Part 3
1.
What
are the rights of the employers in managing their employees? Please discuss
each briefly.
Answer:
a)
RIGHT
TO MANAGE PEOPLE. Employer is free to
regulate, according to his own discretion and judgment, all aspects of
employment, including hiring, work assignments, working methods, time, place
and manner of work, tools to be used, processes to be followed, supervision of
workers, working regulations, transfer of employees, work supervision, layoff
of workers and the discipline, dismissal and recall of workers.
b)
THE
RIGHT TO DISCIPLINE. Employer has the
prerogative to instill discipline in his employees and to impose reasonable
penalties, including dismissal, on erring employees pursuant to company rules
and regulations.
c)
THE
RIGHT TO TRANSFER EMPLOYEES. One of the prerogatives of management to transfer an
employee from one office to another within the business establishment, provided
that there is no demotion in rank or a diminution of his salary, benefits and
other privileges. This is a privilege inherent in the employer's right to
control and manage its enterprise effectively.
d)
THE
RIGHT TO DEMOTE. In the power of the
management to demote an employee for its failure to maintain its required
performance, as a sanction, etc.
e)
THE
RIGHT TO DISMISS.
The right of the company to dismiss its employees is a measure of
self-protection, despite the express protection of the constitution to
employees the employer has a right to dismiss its employee with valid cause and
observant of due process of law.
2.
How
would you balance the interests of the employer and the employee?
Answer:
Balancing workers' rights with the rights of employers to exercise management
prerogatives in dealing with their companies’ affairs, including their right to
dismiss erring employees. The law recognized the right
of the employer to regulate all aspects of employment, such as the freedom to
prescribe work assignments, working methods, processes to be followed,
regulation regarding transfer of employees, supervision of their work, lay-off
and discipline, and dismissal and recall of workers. Thus, for as long as the company's exercise of judgment is in good faith to
advance its interest and not for the purpose of defeating or circumventing the
rights of employees under the laws or valid agreements, such exercise will be
upheld by the law.
3.
Is
the right of the employer to dismiss employees absolute? if no, what are the
limitation. If yes, why?
Answer: No. preservation of the lives of the citizens is a basic
duty of the State, more vital than the preservation of corporate profit. Dismissal or lay off an employee should be
for just and authorized causes enumerated under Articles 282 and 283 of the
Labor Code. Dismissals must not be arbitrary and capricious. Due process must
be observed in dismissing an employee because it affects not only his position
but also his means of livelihood.
Further, Dismissal of employees requires the observance of the
two-fold due process requisites, namely: (1) Substantive aspect which
means that the dismissal must for any of the just causes provided under Article
297 of the Labor Code or the company rules and regulations promulgated by the
employer or authorized causes under Article 298 of the Labor Code, and
(2) 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.
4.
There
are two classification of causes for termination, “just causes” and “authorized
causes”, what are the distinctions?
Answer: A dismissal based on just cause means that
the employee has committed a wrongful act or omission; while a dismissal
based on authorized cause means that there exists a ground
which the law itself authorizes to be invoked to justify the termination of an
employee even if he has not committed any wrongful act or omission.
5.
For
the 1st jaust cause - Serious misconduct, what is misconduct? When is it
considered as serious? What are the requisites for the misconduct to be a just
cause of dismissal?
Answer: Misconduct is improper or wrong
conduct. It is 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.
To be considered
serious, the Act must be of such a grave and aggravated character and not
merely trivial or unimportant.
6.
Please
give examples/illustrations of misconduct.
Answer:
a.
The
pressure and influence exerted by the petitioner (a college teacher) on his
colleague to change a failing grade to a passing one, as well as his
misrepresentation that the student is his nephew, constitute serious
misconduct, which is a valid ground for dismissing an employee.
b.
An
employee who utters obscene, insulting or offensive words against a superior.
c.
An
employee slapping and/or punching his co-employee or his/her manager.
7.
Is
immorality in general considered as misconduct which can warrant dismissal? How
about sexual harassment?
Answer: As a general rule, immorality on the part of an
employee does not justify a discharge therefor unless such conduct is
prejudicial or in some way detrimental to the employer's interests. The
test is not morality in the abstract, but whether, taking the nature of the
employment into account, the immoral acts complained of were such as to render
the servant incapable of performing the service properly or were calculated to
injure the employer's business.
Example, an pregnant teacher-employee
committed adultery. However, in a certain labor case held by the Supreme Court,
pregnancy is not immoral per se, provided that the woman or his partner does
not have legal impediments to contract a marriage.
8.
Supposing
two employees engaged in a fist fight during office hours and within the
premises of the company, could it be considered as serious misconduct?
Answer: Yes, provided it is work-related
9.
Please
read the case of Chua-Qua vs Hon. Jacobo because it is very interesting ;)
Answer:
Done reading.
10. What is considered as
“immorality” which can be a valid ground for dismissal? If the woman had a
child out of wedlock, would this be considered as immorality which can justify
termination?
Answer: Those acts and conduct which is so willful,
flagrant, or shameless as to show indifference to the opinion of good and
respectable members of the community.
No.
In the case of Cheryll Leus vs St. Scholastica's College Westgrove,
the Supreme Court held, that 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, stating the following relevant explanation;
(1) if the father of the child is
himself unmarried, the woman is not ordinarily administratively liable for
disgraceful and immoral conduct. It may be a not-so-ideal situation and may
cause complications for both mother and child but it does not give cause for
administrative sanction. There is no law which penalizes an unmarried
mother under those circumstances by reason of her sexual conduct or proscribes
the consensual sexual activity between two unmarried persons. Neither does the
situation contravene any fundamental state policy as expressed in the
Constitution, a document that accommodates various belief systems irrespective
of dogmatic origins.
(2) if the father of the
child born out of wedlock is himself married to a woman other than the mother,
then there is a cause for administrative sanction against either the father or
the mother. In such a case, the “disgraceful and immoral conduct”
consists of having extramarital relations with a married person. The
sanctity of marriage is constitutionally recognized and likewise affirmed by
our statutes as a special contract of permanent union. Accordingly,
judicial employees have been sanctioned for their dalliances with married
persons or for their own betrayals of the marital vow of fidelity. In this case,
it was not disputed that, like respondent, the father of her child was
unmarried. Therefore, respondent cannot be held liable for disgraceful and
immoral conduct simply because she gave birth to the child Christian Jeon out
of wedlock.
11. How about if the employees
are engaging in extra marital affairs, can this be considered as misconduct
justifying termination? Will this only apply to employees such as teachers, or
those which are expected to be role models of the society? How about if the
employees having extra marital affairs are mere clerks or cashier in a
supermarket, will this also apply?
Answer:
Yes. Cheryll Leus
vs St. Scholastica's College Westgrove,
The Court cited Estrada vs. Escritur in the said case, stating the
following relevant explanation;
(2) if the father of the
child born out of wedlock is himself married to a woman other than the mother,
then there is a cause for administrative sanction against either the father or
the mother. In such a case, the “disgraceful and immoral conduct”
consists of having extramarital relations with a married person. The
sanctity of marriage is constitutionally recognized and likewise affirmed by
our statutes as a special contract of permanent union. Accordingly,
judicial employees have been sanctioned for their dalliances with married
persons or for their own betrayals of the marital vow of fidelity. In this
case, it was not disputed that, like respondent, the father of her child was
unmarried. Therefore, respondent cannot be held liable for disgraceful and
immoral conduct simply because she gave birth to the child Christian Jeon out
of wedlock.
Yes. the Court said: "A teacher, both
in his personal and official conduct, must display exemplary behavior... When a
teacher engages in extra-marital relationship, especially when the parties are
both married, such behavior amounts to immorality, justifying his dismissal
from employment.
Yes.
even a mere
clerks or cashier in a supermarket may be dismissed, because the conduct is
willful, flagrant or shameless and a violation of the a law, , the
“disgraceful and immoral conduct” consists of having extramarital relations
with a married person. The sanctity of marriage is constitutionally
recognized and likewise affirmed by our statutes as a special contract of
permanent union.
12. Define immoral conduct.
Answer:
conduct which is so willful, flagrant, or shameless as to show indifference to
the opinion of good and respectable members of the community.
13. Second just cause - what are
the requisites for willful disobedience for it to constitute valid cause for
termination?
Answer: In order that the
willful disobedience by the employee may constitute a just cause for
terminating his employment, the orders, regulations, or instructions of the
employer or representative must be:
a)
reasonable
and lawful;
b)
sufficiently
known to the employee; and
c)
in
connection with the duties which the employee has been engaged to discharge.
14. When can you say that the
order is “reasonable”?
Answer:
it will depend on the circumstances of each case. Reasonableness,
however, has reference not only to the kind and character of directions and
commands, but also to the manner in which they are made.
15. What are the elements of
disobedience?
Answer: Willful disobedience of the employer's lawful orders, as a
just cause for the dismissal of an employee, envisages the concurrence of at
least two (2) requisites:
1.
the
employee's assailed conduct must have been willful or intentional, the
will-fulness being characterized by a "wrongful and perverse
attitude"; and
2.
the
order violated must have been reasonable, lawful, made known to the employee
and must pertain to the duties which he had been engaged to discharge.
16. Are the rules for dismissal
of managerial employees and ordinary employees the same?
Answer:
No. rules for dismissal of managerial employees and ordinary employees are not
the same.
17. Supposing a policy of a
company prohibits marriage between employees, is this a valid policy? Supposing
two employees violated the policy, can the company be justified in terminating
the employees?
Answer: In setting aside
as void the subject employer’s policy, the Supreme Court, through Justice
Reynato S. Puno, ruled that, while there is no express prohibition in our
jurisdiction on marital discrimination, the "no spouse employment
policy" violates the employees’ marital status because it arbitrarily
discriminates against all spouses of present employees without regard to the
particular individual’s qualifications or work performance. It is invalid for
failure of the employer to present evidence of business necessity, other than
the general perception that spouses in the same workplace might adversely affect
the business. This policy violates the bona fide occupational qualification
rule. To justify such an employer’s no spouse rule, the employer, according to
the High Court, must prove two factors: (1) that the employment qualification
is reasonably related to the essential operation of the job involved; and (2)
that there is a factual basis for believing that all or substantially all
persons meeting the qualification would be unable to properly perform the
duties of the job.
18. Can the employee use the
defense of ignorance of the policy to justify that he/she was unjustly
terminated?
Answer: No. as a rule, employer must present undisputed proof of
a reasonable business necessity, we rule that the questioned policy is an
invalid exercise of management prerogative.
19. Supposing the employee
disobeyed the order of transfer of the employer, can this be a valid cause for
termination? What can be the parameters which we can use in order to determine
if the disobedience is justified or not? (please make a summary of the ruling
of the cases of Abbot Laboratories vs NLRC, Ruiz vs Wendel Osaka Realty,
Escobon vs NLRC, Yuco Chemical Industries vs Ministry of Labor and Employment,
Misamis Oriental II Elec. Cooperative bs VM Cagalawan, Homeowners Savings and
Loan Association vs NLRC)
Answer:
Yes. Provided that the following elements
are present and observed to constitutes valid dismissal, to wit : (1) the
employee's attitude — wrongful and perverse, and (2) the qualities of the order
— lawful, reasonable, made known to the employee, and pertain to the duties of
the employee.
Abbot Laboratories vs NLRC: Valid Transfer
In this case, the Supreme
Court discussed the employer has the
right to transfer employee and this right flows from ownership and from the
established rule that labor does not authorize the substitution of judgment of
the employer in the conduct of his business, unless it is shown to be contrary
to law, morals or public policy.
In the
case, the employee had no valid reason to disobey the order of transfer. By the
very nature of his employment, a drug salesman or medical representative is
expected to travel. He should anticipate reassignment according to the demands
of the business and reassignments are part of the employment contract.
Ruiz vs Wendel Osaka Realty:
An employer has the inherent
right to transfer or assign an employee in pursuance of its legitimate business
interest, subject only to the condition that the move be not motivated by bad
faith. Having lost his trust and confidence in petitioner, respondent Delfin
had the right to transfer her to ensure that she would no longer have access to
the companies’ confidential files. Although it is true that petitioner has yet
to be proven guilty, respondents had the authority to reassign her, pending
investigation.
Escobin Case:
As a general rule,
Inconvenience to the employee does not necessarily invalidate a transfer order,
as shown in the Homeowners' Savings and the other cases already mentioned. But
inconvenience caused by unreasonableness of the transfer order makes the order
itself invalid, and disobedience thereof is not a reason to dismiss the worker.
In other words, although mere inconvenience does not justify disobedience to a
transfer order, the transfer order itself becomes flawed and unenforceable if
it fails the criteria of lawfulness and reasonableness.
In Escobin the Court repeats this
reminder:
The reasonableness and lawfulness of a rule, order or
instruction depend on the circumstances availing in each case. Reasonableness
pertains to the kind or character of directives and commands and to the manner
in which they are made.
Yuco Chemical Industries vs Ministry of Labor and
Employment: Re:
Invalid Transfer
Illustrates an invalid
exercise of the power to transfer. The employees' right to unionize appears to
be superior to the management's right to transfer employees.
In the case, the
reassignment of complainant employees Halili and Magno to Manila is legally
indefensible on several grounds. Firstly, it was grossly inconvenient to them.
They are working students. When they received the transfer memorandum directing
their relocation to Manila within seven days from notice, classes had already
started. The move from Tarlac to Manila at such time would mean a disruption of
their studies. Secondly, there appears to be no genuine business urgency that
necessitated their transfer.
Misamis Oriental II Elec. Cooperative bs VM Cagalawan
Court has always
considered the management s prerogative to transfer its employees in pursuit of
its legitimate interests. But this prerogative should be exercised without
grave abuse of discretion and with due regard to the basic elements of justice
and fair play, such that if there is a showing that the transfer was
unnecessary or inconvenient and prejudicial to the employee, it cannot be
upheld.
Here, while we find
that the transfer of Cagalawan neither entails any demotion in rank since he
did not have tenurial security over the position of head of the disconnection
crew, nor result to diminution in pay as this was not sufficiently proven by
him, MORESCO II s evidence is nevertheless not enough to show that said
transfer was required by the exigency of the electric cooperative s business
interest. Simply stated, the evidence sought to be admitted by MORESCO II is
not substantial to prove that there was a genuine business urgency that
necessitated the transfer.
Homeowners Savings and
Loan Association vs NLRC: May an Employee Disobey
an Inconvenient Transfer
As a general Rule, that an employee's transfer is invalid if it
is done for an illicit or underhanded purpose, such as to defeat the employees'
right of self-organization, or to penalize an employee for union activities, or
to remove an undesirable employee. To remove an employee requires a valid
reason and a valid procedure. Dismissal disguised as transfer is not the legal
mode to dismiss a worker.
In the case, the court cited the case of Phil. Telegraph and
Telephone Corp. vs. Laplana, and discussed the difference of the two cases,
private respondent Cabatbat is better situated than Laplana in the above-cited
case. The distance between her new assignment in Urdaneta, Pangasinan, and her
place of residence in Malabago, Calasiao, Pangasinan, is only about thirty (30)
kilometers. On the other hand, the distance between Baguio City and Laoag City
is definitely beyond thirty (30) kilometers. Since we ruled that the transfer
of Laplana from Baguio to Laoag was valid, we see no reason to resolve that the
transfer of Marilyn from San Carlos to Urdaneta is improper, absent any showing
of bad faith on the part of petitioner corporation in effecting the transfer.
Private respondent's refusal to obey the transfer order constitutes willful
disobedience of a lawful order of her employer sanctioned under Article 282 of
the Labor Code and, therefore, warrants dismissal.
20. What is the test to
determine validity of transfer/Change of Position? When is transferred considered unenforceable,
when is it valid, and when can it be considered as tantamount to constructive
dismissal?
Answer:
The managerial prerogative to transfer
personnel must be exercised without grave abuse of discretion, bearing in mind
the basic elements of justice and fair play. Should the employer fail to
overcome this burden of proof, the employee's transfer shall be tantamount to
constructive dismissal, which has been defined as a quitting because continued
employment is rendered impossible, unreasonable or unlikely; as an offer
involving a demotion in rank and diminution in pay. Likewise, constructive
dismissal exists when an act of clear discrimination, insensibility or disdain
by an employer has become so unbearable to the employee leaving him with no
option but to forego with his continued employment.
21. 3rd cause - neglect of
duties: What do you mean by gross neglect? Is it necessary that the employer
suffered losses or damages because of the neglect in order for it to be
considered as a valid cause for termination?
Answer:
Gross neglect means an absence of that diligence that an
ordinarily prudent man would use in his own affairs.
No. it does not necessary that the employer show that he has
incurred actual loss, damage, or prejudice by reason of the employee's conduct.
It is sufficient that the gross and habitual neglect by the employee of his
duties tends to prejudice the employer's interest since it would be
unreasonable to require the employer to wait until he is materially injured
before removing the cause of the impending evil.
22. Is it required that the employee
be informed of the particular degree of care or skill which he needs to
exercise in his work?
Answer:
Generally, an employee may be dismissed because of inefficiency,
neglect or carelessness. The law implies a stipulation or undertaking by an
employee in entering into a contract of employment that he is competent to
perform the work undertaken and is possessed of the requisite skill and
knowledge to enable him to do so, and that he will do the work of the employer
in a careful manner. If he is not qualified to do the work which he undertakes,
if he is incompetent, unskillful or inefficient, or if he executes his work in
a negligent manner or is otherwise guilty of neglect of duty, he may lawfully
be discharged before the expiration of his term of employment.
23. Define Gross Negligence. Can
you please give illustrations?
Answer:
Gross negligence has been defined as the want or absence
of or failure to exercise slight care or diligence, or the entire absence of
care. It evinces a thoughtless disregard of consequences without exerting any
effort to avoid them.
24. Are gross negligence the
same with habitual neglect and fraud?
Answer:
No. Gross
negligence implies a want or absence of or failure to exercise even slight
care or diligence, or the entire absence of care. It evinces a thoughtless
disregard of consequences without exerting any effort to avoid them. Habitual
neglect implies repeated failure to perform one's duties for a period of
time, depending upon the circumstances. Fraud is a willful breach
by the employee of the trust reposed in him by his employer or duly authorized
representative, occurs when the employee concerned must be holding a position
of trust and confidence and there must be an act that would justify the loss of
trust and confidence.
25. When is abandonment
considered as neglect of duty? What are the elements of abandonment?
Answer:
To constitute abandonment, there must be a clear and deliberate
intent to discontinue one's employment without any intention of returning back.
To constitute abandonment, two elements must concur: (1) the failure to report
for work or absence without valid or justifiable reason, and (2) a clear intention
to sever the employer-employee relationship, with the second element as the
more determinative factor and being manifested by some overt acts. (Labor, et
al vs. NLRC and Gold City Commercial Complex, Inc., and Uy, G.R. No. 110388,
September 14, 1995)
26. How about tardiness and
absenteeism, when can we considered this as gross negligence justifying
termination?
Answer:
Generally, tardiness and absenteeism, like abandonment, are a
form of neglect of duty. If the its unauthorized and habitual.
27. Is personal differences
between management and the employee a valid case for termination? How about
attitude problem of the employee? Why or why not?
Answer:
An employee who
cannot get along with his co-employees is detrimental to the company, for he
can upset and strain the working environment. Thus, an employee's attitude
problem is a valid ground for his termination. It is a situation analogous to
loss of trust and confidence that must be duly proved by the employer.
Similarly, compliance with the twin requirement of notice and hearing must also
be proven by the employer.
28. 4th cause - Dishonesty and
loss of confidence: What is dishonesty?
Answer:
Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized representative. To constitute
a just cause for terminating the employee's services, the fraud must be
committed against the employer or representative and in connection with the
employee's work. Thus, the fraud committed by an employee against third persons
not in connection with his work and which does not in anyway involve his
employer is not a ground for the dismissal of the employee.
29. Can tampering and
falsification of time card be enough to justify termination?
Answer:
Yes. As held by the Supreme Court in a case, the falsification
and fraud which the private respondents committed against their employer are
inexcusable. Their chiefs initials on the false entries in their time cards did
not purge the documents of their falsity. Their acts constituted dishonesty and
serious misconduct, lawful grounds for their dismissal under Article 282,
subparagraphs (a) and (c), of the Labor Code. (San Miguel Corporation vs.
National Labor Relations Commission, G.R. No. 82467, June 29, 1989)
30. Theft of employer’s property
can be considered as valid cause for termination. Supposing the property stolen belonged to a
co-employee, can it be a cause for termination?
Answer:
Yes. in the case
of Firestone Tire and Rubber Company of the Philippines vs. Lariosa, G.R. No.
70479, February 27, 1987, it was held that if employee, by his own wrongdoing,
could no longer be trusted it would be an act of oppression to compel the
company to retain him, fully aware that such an employee could, in the long
run, endanger its very viability.
31. What is required in order
for loss of confidence to be a valid reason for dismissal?
Answer:
As a general rule, right of an employer to freely select or discharge
his employees is subject to regulation by the State basically in the exercise
of its paramount police power, nonetheless an employer cannot be compelled to
continue in employment an employee guilty of acts inimical to the interest of
the employer and justifying loss of confidence in him. (Tabacalera Insurance
Co., Inc. vs. National Labor Relations Commission, G.R. No. 72555) But to be a valid reason of dismissal, loss of
confidence must be genuine. “Loss of confidence should not be simulated in
order to justify what would otherwise be, under the provisions of law, an
illegal dismissal. "It should not be used as a subterfuge for causes which
are illegal, improper and unjustified. It must be genuine, not a mere
afterthought to justify an earlier action taken in bad faith." (N. Mabeza
vs. NLRC and Hotel Supreme, G.R No. 118506, April 18, 1997.)
32. Can “loss of confidence”
apply to all types of employees? Supposing the employee is the doorman of the
hotel, can this be used as a valid cause for termination?
Answer:
No. Loss of confidence as a just cause for dismissal was never
intended to provide employers with a blank check for terminating their
employees. Loss of confidence should ideally apply only (1) to cases involving
employees occupying positions of trust and confidence, or (2) to those
situations where the employee is routinely charged with the care and custody of
the employer's money or property.
The
guidelines for applying the doctrine of loss of confidence are:
1.
loss of confidence should not be simulated;
2.
it should not be used as a subterfuge for
causes which are improper,
3.
illegal, or unjustified;
4.
it may not be arbitrarily asserted in the
face of overwhelming evidence
5.
to the contrary;
6.
it must be genuine, not a mere afterthought
to justify earlier action
7.
taken in bad faith; and
8.
the employee involved holds a position of
trust and confidence.
33. Is pecuniary gain a necessary
element of termination on account of loss of trust?
Answer:
Yes. pecuniary gain is a necessary element of termination on
account of loss of trust.
34. What is the proof required
in order for loss of trust or confidence to be a valid cause for dismissal?
Answer:
Loss of confidence is a valid ground for dismissing an employee
and proof beyond reasonable doubt of the employee's misconduct is not required.
It is sufficient if there is some basis
for such loss of confidence or if the employer has reasonable ground to believe
or to entertain the moral conviction that the employee concerned is responsible
for the misconduct and that the nature of his participation therein rendered
him unworthy of the trust and confidence demanded by his position. (Reyes vs.
Minister of Labor, G.R. No. 47805, February 9, 1989)
35. Please summarise the
guidelines for loss of confidence to be a cause for termination of employment.
Answer:
While loss of confidence is one of the just causes for
termination of an employee, the dismissal must rest on an actual breach of duty
committed by the employee. The guidelines for applying the doctrine of loss of
confidence are:
1.
loss of confidence should not be simulated;
2.
it should not be used as a subterfuge for
causes which are improper,
3.
illegal, or unjustified;
4.
it may not be arbitrarily asserted in the
face of overwhelming evidence
5.
to the contrary;
6.
it must be genuine, not a mere afterthought
to justify earlier action
7.
taken in bad faith; and
8.
the employee involved holds a position of
trust and confidence.
36. 5th cause - commission of an office or crime -
to whom should the crime or offence be committed to?
Answer:
Employee's commission of a crime or offense against the
person of his employer or against any immediate member of the
employer's family.
37. Is conviction necessary?
Answer:
No. Conviction of an employee in a criminal case is not
indispensable to warrant his dismissal by his employer and the fact that a
criminal complaint against the employee has been dropped by the city fiscal is
not binding and conclusive upon the labor tribunal.
38. Analogous cause - how can we
determine if the case is analogous? Is there a test that we can apply? Please
give examples.
Answer:
In determining
whether the cause for terminating employment is analogous to any of those
enumerated in Article 282 of the Code will depend on the circumstances of each
case. To be considered analogous to the just causes
enumerated, however, a cause must be due to the voluntary and/or willful act or
omission of the employee.
Example:
The employer (Duterte Trucks)
could not continue the employment of ten of the complainant employees because China
had prohibited them from entering China’s premises as they were suspected of
illegally diverting gasoline.
Post Employment: Termination of
Employment Part 4
1.
Why
is it called “authorized” causes? Is the enumeration exclusive?
Answer:
Dismissal based on authorized cause means
that there exists a ground which the law itself authorizes to be invoked to
justify the termination of an employee even if he has not committed any
wrongful act or omission.
No. Aside from the authorize cause under Labor Code,
which are classified into two (2) classes, namely: (1) Business-related causes
and (2) Health-related causes. Business-related causes which are recognized
under the said Code are as follows: Installation
of Labor-Saving Device; Redundancy;
Retrenchment and Closure or Cessation of Business Operations, there
are other authorizes causes for termination of employees.
Many other causes are lawful and
therefore allowed. Among them are the total and permanent disability of an
employee, disease not curable in six months, valid application of a union
security clause, expiration of period in term employment, completion of project
in project employment, failure in probation, sale amounting to closure of
business, relocation of business to a distant place, defiance of return-to-work
order, commission of illegal acts in a strike, non-feasible reinstatement,
floating status or off-detail beyond six months, resignation, violation of a
contractual commitment such as being a consultant to a competitor, retirement,
and, of course, death of the employee.
2.
Why
is it that for just causes termination, there is no separation pay, but for authorized
causes termination, there is separation pay?
Answer:
Because in just cause
termination, fault of the termination lies on the part of the employee while
the loss of job in authorize termination is on the part of the employer, thus,
separation pay must be provided.
3.
What
is separation pay? How much is the separation pay for dismissal due to
authorized causes?
Answer:
In cases of installation
of labor-saving devices or redundancy, the employee is entitled to receive the
equivalent of one month pay or one month for every year of service, whichever
is higher.
In cases of
retrenchment, closure or cessation of business or incurable disease, the
employee is entitled to receive the equivalent of one month pay or one-half
month pay for every year of service, whichever is higher.
In case of separation
pay in lieu of reinstatement, the employee is entitled to receive the
equivalent of one month pay for every year of service.
4.
If
an employee was terminated for any of the authorised cause, and after ruling
that there is illegal dismissal, can the employee seek the relief of
reinstatement with backwashes rather than receiving separation pay? Why or why
not?
Answer:
Yes. as a rule, an employee who is
unjustly dismissed from work is "entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed
from the time his compensation was withheld up to the time of his actual
reinstatement." On the other hand, an employee whose employment is
terminated due to any of the causes under Article 283 (except closure or
cessation because of serious losses) is "entitled to a separation pay."
5.
Please
explain the 1st authorised cause - installation of labor saving device.
Answer:
Reduction
of the number of workers in a company's factory made necessary by the
introduction of machinery in the manufacture of its products is justified.
Subject to limitation against abuse.
6.
When
is there redundancy? Is this limited to duplication of work or task?
Answer:
Redundancy, for purposes of our Labor
Code, exists where the services of an employee are in excess of what is reasonably
demanded by the actual requirements of the enterprise.
No. position is redundant where it is
superfluous, and superfluity of a position or positions may be the outcome of a
number of factors, such as overhiring of workers, decreased volume of business,
or dropping of a particular product line or service activity previously
manufactured or undertaken by the enterprise
7.
Please
read the case of Santos vs CA and Pepsi as regards valid redundancy program of
an employer.
Done
8.
What
are the criteria to be followed in the selection of employees to be dismissed
due to redundancy? If the criteria is not followed, can it be considered as
illegal termination?
Answer:
In
Golden Thread Knitting Industries, Inc. v. NLRC,59 the Court laid down the principle that
the employer must use fair and reasonable criteria in the selection of
employees who will be dismissed from employment due to redundancy. Such fair
and reasonable criteria may include the following, but are not limited to: (a)
less preferred status (e.g. temporary employee); (b) efficiency; and (c)
seniority. The presence of these criteria used by the employer shows good faith
on its part and is evidence that the implementation of redundancy was
painstakingly done by the employer in order to properly justify the termination
from the service of its employees. (G.R. No.
181719 . April 21, 2014. EUGENE S. ARABIT, EDGARDO C. SADSAD, LOWELL C.
FUNTANOZ, GERARDO F. PUNZALAN, FREDDIE M. MENDOZA, EMILIO B. BELEN, VIOLETA C.
DIUMANO and MB FINANCE EMPLOYEES ASSOCIATION FFW CHAPTER (FEDERATION OF FREE
WORKERS) vs. JARDINE PACIFIC FINANCE, INC. (FORMERLY MB FINANCE))
Yes.
if not, it will not justify the termination of the employee/s and will
tantamount to illegal dismissal
9.
Who
has the burden of proof in showing whether dismissal due to redundancy was made
in good faith?
Answer:
burden of proof
in showing whether dismissal due to redundancy was made in good faith is at the
employer.
10. What are the requisiteness
to be followed in order for a valid redundancy program?
Answer:
For
the implementation of a redundancy program to be valid, the employer must
comply with these requisites: (1) written notice served on both the employee
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.
11. Supposing the employees were
terminated by reason of redundancy, however a week after the termination the
employer entered into a contract with an independent contractor for the tasks
previously being done by the terminated employees, can the employees sue for
illegal dismissal? Please explain.
Answer:
No. It ruled that an employer's good faith in implementing a
redundancy program is not necessarily put in doubt by the availment of the
services of an independent contractor to replace the services of the terminated
employees to promote economy and efficiency.
12. What is retrenchment? Why is
considered as an authorized cause for termination?
Answer:
Retrenchment is one of the economic
grounds resorted to by an employer to terminate employment primarily to avoid
or minimize business losses. The law recognizes this under Article 283 of
the Labor Code. However, the employer bears the burden to prove his
allegation of economic or business reverses. The employer's failure to
prove it necessarily means that the employee's dismissal was not justified
13. What may be considered
causes of retrenchment? Please explain briefly.
Answer:
1.
Lack of Work – it
is the continuation of service which may result to patently inimical to the
interest of the employer because lack to work to be done.
2.
Business Recession
– management found it unnecessary to continue employing some of its laborers
because of a business recession, lack of materials to work on due to government
control or due to lack of demand for its products. Example. Due to Covid-19
Enhance Community Quarantine.
3.
Fire – Fire
destroyed the employers business establishment.
4.
Conservatorship -
Conservatorship proceedings against an
insurance company in financial difficulties is a cost-saving measure resorted
to by the Conservator to preserve the assets of the company for the protection
not only of the policyholders and creditors but also of the investors and the
public in general. Conservatorship proceedings contemplate, not the
liquidation of the company involved.
14. What are the requisites of a
valid retrenchment?
Answer:
Under Article
283, there are three basic requisites for valid retrenchment:
1.
the
retrenchment is necessary to prevent or minimize losses and such losses are
proven;
2.
written
notice is given to the employees and the Department of Labor and Employment at
least one month before the intended date of retrenchment;
3.
separation
pay is paid;
4.
the employer exercises its prerogative to
retrench employees in good faith for the advancement of its interest and not to
defeat or circumvent the employee's right to security of tenure; and
5.
the employer uses fair and reasonable
criteria in ascertaining who will be dismissed or retained among the employees,
such as status (i.e., whether they are temporary, casual, or regular),
efficiency, seniority, physical fitness, age and financial hardship for certain
workers.
15. Supposing the notice given
was merely orally done, is that valid?
Answer:
No. the Code requires a written notice to DOLE and to the
employees concerned, and that requirement is mandatory.
16. What can be used as criteria
for a reasonable retrenchment?
Answer:
There must be
fair and reasonable criteria to be used in selecting employees to be dismissed on
account of retrenchment such as (a) less preferred status (i.e. temporary
employees); (b) efficiency rating; and (c) seniority.
17. What is LIFO Rule?
Answer:
The “last in first out” (LIFO) rule indicates that
as between two or more employees affected by a retrenchment program, the last
one employed will be the first to go; seniority of the ones hired earlier
therefore prevails. Such rule has its merits but its observance is not a
statutory duty of the employer.
18. What are the standards of
retrenchment as held in the case of Lopez Sugar Corporation vs Federation of
Free Workers et al?
Answer:
Firstly, the losses expected should be substantial and not
merely de minimis in extent. If the loss purportedly
sought to be forestalled by retrenchment is clearly shown to be insubstantial
and inconsequential in character, the bona fide nature of the
retrenchment would appear to be seriously in question.
Secondly, the substantial loss apprehended must be
reasonably imminent, as such imminence can be perceived objectively and in
good faith by the employer. There should, in other words, be a certain degree
of urgency for the retrenchment, which is after all a drastic recourse with
serious consequences for the livelihood of the employees retired or otherwise
laid-off. Because of the consequential nature of retrenchment.
thirdly, be reasonably necessary and likely to effectively
prevent the expected losses. The employer should have taken other measures
prior or parallel to retrenchment to forestall losses, i.e., cut other costs
than labor costs. An employer who, for instance, lays off substantial numbers
of workers while continuing to dispense fat executive bonuses and perquisites
or so-called "golden parachutes", can scarcely claim to be
retrenching in good faith to avoid losses. To impart operational meaning to the
constitutional policy of providing "full protection" to labor, the
employer's prerogative to bring down labor costs by retrenching must be exercised
essentially as a measure of last resort, after less drastic means — e.g.,
reduction of both management and rank-and-file bonuses and salaries, going on
reduced time, improving manufacturing efficiencies, trimming of marketing and
advertising costs, etc. — have been tried and found wanting.
Lastly, but certainly not the least important, alleged if
already realized, and the expected imminent losses sought to be forestalled,
must be proved by sufficient and convincing evidence. The reason for
requiring this quantum of proof is readily apparent: any less exacting standard
of proof would render too easy the abuse of this ground for termination of
services of employees.
19. What would be the effect of
bring replacement after retrenchment?
Answer:
The reorganization cannot be used as a convenient device to get
rid of existing personnel in order to replace them with new ones. For this
purpose, the regular rules and procedures on dismissal will have to be followed.
Doing this will result to challenge the retrenchment’s validity
and may result to illegal dismissal.
20. Differentiate redundancy
from retrenchment? Please summarise the ruling in Sebuguero vs NLRC as regards
this issue.
Answer:
Redundancy is when the
services of an employee are in excess of what is needed. It can occur even when
the business is doing well if labor is in excess of what the company requires
while Retrenchment is when there are losses in the operation of the
business.
Another
important distinction is that the separation pay awarded to employees is
different.
·
Separation pay for
redundancy is equivalent to the employee’s one-month pay for every year of
service, a fraction of at least six (6) months being considered as one whole
year.
·
Separation pay for
retrenchment is equivalent to one-half (1/2) month pay for every year of
service, a fraction of at least six (6) months being considered as one (1)
whole year, if his/her separation from
Thus,
aside from a purely legal distinction, the economic effects on the company are
different and significantly affect the bottom line. https://lawyerphilippines.org/2018/07/19/termination-due-to-retrenchment/
Sebuguero vs NLRC
In
this case, respondent company was justified in the temporary lay-off of some of
its employees. However, Respondent company should have recalled them after the
end of the six-month period or at the least reasonably informed them
(complainants) that the Respondent company is still not in a position to recall
them due to the continuous drop of demand in the export market (locally or
internationally), thereby extending the temporary lay-off with a definite
period of recall and if the same cannot be met, then the company should
implement retrenchment and pay its employees separation pay
21. When is there temporary
retrenchment? Is this allowed?
Answer:
There is no specific provision of law which
treats of a temporary retrenchment or lay-off and provides for the requisites
in effecting it or a period or duration therefor.
Yes. provided
that its requirement must be followed.
The temporary lay-off wherein the
employees likewise cease to work should also not last longer than six months. After six months, the
employees should either be recalled to work or permanently retrenched following
the requirements of the law, and that failing to comply with this would be
tantamount to dismissing the employees and the employer would thus be liable
for such dismissal.
22. Why do we need to
differentiate redundancy from retrenchment? How do we know if its redundancy or
preventive retrenchment?
Answer:
The Court has interpreted the law to mean that the employer need
not keep all his employees until after his losses shall have materialized.
Otherwise, the law could be vulnerable to attack as undue taking of property
for the benefit of another.
Redundancy is services of an employee are in excess of what is
reasonably demanded by the actual requirements of the enterprise while a preventive
retrenchment is the employers right lay off his or her employees without
waiting for all his/her losses to materialize.
23. Please summarize the ruling
in Edge Apparel vs NLRC as regards distinction of retrenchment and redundancy.
Answer:
Redundancy exists where the services of an employee are in
excess of what would reasonably be demanded by the actual requirements of the
enterprise. A position is redundant when it is superfluous, and
superfluity of a position or positions could be the result of a number of
factors, such as the overhiring of workers, a decrease in the volume of business
or the dropping of a particular line or service previously manufactured or
undertaken by the enterprise1 [emphasis supplied]. An employer has no legal
obligation to keep on the payroll employees more than the number needed for the
operation of the business.
Retrenchment,
in contrast to redundancy, is an economic ground to reduce the number of
employees. In order to be justified, the termination of employment by
reason of retrenchment must be due to business losses or reverses which are serious,
actual and real. Not every loss incurred or expected to be incurred by the
employer will justify retrenchment, since, in the nature of things, the
possibility of incurring losses is constantly present, in greater or lesser
degree, in carrying on the business operations. Retrenchment is normally
resorted to by management during periods of business reverses and economic
difficulties occasioned by such events as recession, industrial depression, or
seasonal fluctuations. It is an act of the employer of reducing the workforce
because of losses in the operation of the enterprise, lack of work, or
considerable reduction on the volume of business. [emphasis supplied].
Retrenchment is, in many ways, a measure of last resort when other less drastic
means have been tried and found to be inadequate. A lull caused by lack of
orders or shortage of materials must be of such nature as would severely affect
the continued business operations of the employer to the detriment of all and
sundry if not properly addressed. The institution of "new methods or more
efficient machinery, or of automation" is technically a ground for
termination of employment by reason of installation of labor-saving devices but
where the introduction of these methods is resorted to not merely to effect
greater efficiency in the operations of the business but principally because of
serious business reverses and to avert further losses, the device could then
verily be considered one of retrenchment.
24. When is there constructive
retrenchment?
Answer:
Constructive
retrenchment occurs when an employee resigns as a result
of the employer creating a hostile work environment. Since the resignation was
not truly voluntary, it is, in effect, a termination.
If
the employee has been rotated by the employer for over six (6) months due to
the serious losses in the business, thus employee had been effectively deprived
of a gainful occupation thereby, and considering further that the business of
the employer was ultimately closed and sold off. Therefore, employee may be
considered constructively dismissed or retrenched from employment.
25. What is/are required for
closure of business to be a valid and authorized cause for termination?
Answer:
Employer must comply with the clearance or report required under
the Labor Code and its implementing rules before terminating the employment of
the employees. Another,
business reverses can be a just cause for terminating employees, however, the
losses must be sufficiently proven by the employer
26. Supposing the business is
not at a loss, but the employer wants to close the business due to some other
reason, can it be considered as an authorized cause?
Answer:
Yes. Closure is not only allowed in case the business is losing.
If the business is not losing but its owner, for reasons of his own, wants to
get out of the business, he in good faith can lawfully do so anytime. Just as
no law forces anyone to go into business, no law compels anybody to stay in
business. But the employees should be paid the severance pay.
27. What are the requisites for
cessation of business not due to business reverses to be valid?
Answer:
Under Labor Code, cessation of business operations not due to
business reverses, must meet three (3) requirements namely: (a) service of a
written notice to the employees and to the MOLE at least one (1) month before
the intended date thereof; (b) the cessation of or withdrawal from business
operations must be bona fide in character; and (c) payment to the employees of
termination pay amounting to at least one-half (1/2) month pay for each year of
service, or one (1) month pay, whichever is higher.
28. Is partial closure allowed?
If so, what is/are the effect/s? How about temporary shutdown, is it allowed?
Answer:
Yes, partial
closure is allowed. The Labor Code permits ―closure or cessation of operation
of an establishment or undertaking not due to serious business losses or
financial reverses.
No, Temporary shutdown is not a good reason
to terminate employees, where operations continued after such repairs, and it
is apparent that the closure of the company’s warehouse was merely a ploy to
get rid of the employees who were then agitating the company for benefits,
reforms and collective bargaining as a union.
29. Supposing the closure of
business was due to serious business losses, is it still required to pay
separation pay? Please compare and contrast the rulings in Banco Filipino vs
NLRC, State Investment House Inc vs CA, Victor Mendoza vs NLRC, Mindanao
Terminal and Brokerage Service Inc vs Hon. Minister of Labor and Employment,
North Davao Mining Corp vs NLRC.
Answer:
Yes. In the case of Banco Filipino Savings and Mortgage Bank,
etc. vs. NLRC, et al, The Supreme Court ruled by quoting with approval the
opinion of respondent Labor Arbiter, thus: Labor Code enumerates the just
causes for an employer to terminate an employee. If an employee is dismissed
for just cause, he is not entitled to termination pay. However, in [Article
283], in case of closure of establishment, the employee is always given
termination pay. The reason for the closure is taken into consideration only to
determine whether to give one (1) month or one-half (1/2) month pay for every
year of service. This provision is based on social justice and equity. The
rulings in State Investment House, in Mendoza and in Mindanao Terminal which
are all more recent than the 1990 ruling in Banco Filipino, support the
conclusion that separation pay need not be paid to employees if the business
has closed or ceased operations because of serious losses or financial reverses
duly proven. In the case of North Davao Mining Corporation vs. NLRC, et al, the
Court, speaking through Mr. Justice (later Chief Justice) Panganiban, the Court
replied no. "...Article 283 governs the grant of separation benefits 'in
case of closures or cessation of operation' of business establishments NOT due
to serious business losses or financial reverses xxx." Where, however, the
closure was due to business losses — as in the instant case, in which the
aggregate losses amounted to over P20 billion — the Labor Code does not impose
any obligation upon the employer to pay separation benefits, for obvious
reasons.
30. Supposing the Company paid a
number of employees a generous amount of Separation pay, should the remaining
employees be given the same generosity?
Answer:
No. The law requires the employer to pay a separation to an
employee equivalent to his 1- month salary. What goes beyond it is already a
management prerogative. Hence, remaining employees should not be given the same
is the management would not want it.
31. When is sale of the business
considered in good faith?
Answer:
In a number of cases on this point, the rule has been laid down
that the sale or disposition must be motivated by good faith as an element of
exemption from liability. Indeed, an innocent transferee of a business
establishment has no liability to the employees of the transferor to continue
employing them. Nor is the transferee liable for past unfair labor practices of
the previous owner, except when the liability therefor is assumed by the new
employer under the contract of sale, or when liability arises because of the
new owner's participation in thwarting or defeating the rights of the employees.
Where such transfer of ownership is in good faith, the transferee is under no
legal duty to absorb the transferor's employees as there is no law compelling
such absorption.
32. If the asset of the
corporation was sold, can we considered that as closure of business? Please
give the ruling in the case of SME Bank vs De Guzman.
Answer:
The rule in this case involves a stock sale. It is error to even
discuss transfer of ownership of the business, as the business did not actually
change hands. The transfer only involved a change in the equity composition of
the corporation. To reiterate, the employees are not transferred to a new
employer, but remain with the original corporate employer, notwithstanding an
equity shift in its majority shareholders. This being so, the employment status
of the employees should not have been affected by the stock sale. A change in
the equity composition of the corporate shareholders should not result in the
automatic termination of the employment of the corporation’s employees. Neither
should it give the new majority shareholders the right to legally dismiss the
corporation’s employees, absent a just or authorized cause. (SME Bank,
Inc. vs. De Guzman, 707 SCRA 35, G.R. No. 184517 October 8, 2013)
33. When is there simulated
sale? What is the effect of a simulated sale?
Answer:
There is simulated case when it is motivated with bad faith with
he intention to evade obligations demanded by law. In case of simulated sales a
transferee of a business establishment has liability to the employees of the
transferor to continue employing them. The transferee will be liable for past
unfair labor practices of the previous owner.
34. What is the effect of
merger? How about Consolidation?
Answer:
By the fact of merger, succession of employment rights and
obligations occurs between the absorbing corporation and the employees of the
absorbed corporation. Not only must the absorbing corporation retain the
employees; it should likewise recognize the length of service in the previous
employer. Upon the perfecting, as aforesaid, of a consolidation made in the
manner herein provided, the several corporations parties thereto shall be
deemed and taken as one corporation, upon the terms and conditions set forth in
said agreement; or, upon the perfecting of a merger, the corporation merged
shall be deemed and taken as absorbed by the other corporation and incorporated
in it.
35. What are the substantive
element of ailment or disease as valid cause for termination?
Answer :
If 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
authority that the disease is of such nature or at such a stage that it cannot
be cured within a period of six months even with proper medical treatment.
Post-Employment: Termination of Employment Part 5 - Procedure to Terminate Employment
1.
If
the dismissal did not follow the procedural requirements, is the effect the same
as when the dismissal is without valid cause? why or why not?
Answer: No. Lack of a valid cause makes the dismissal illegal and
invalid, thus generally entitling the employee to reinstatement. Lack of proper
procedure, on the other hand, does not invalidate the dismissal which means
that the employee remains dismissed, but the employer becomes liable for
indemnity for violating the employee's right to due process. In
short, what makes a dismissal "illegal" is the absence of valid
cause, not the nonobservance of procedural due process.
2.
What
does “procedural due process” in termination mean?
Answer: Procedural due process requires employee can only be
dismissed after he has been given an opportunity to be heard. it is the process
and procedure laid down by the law to terminate an employee for authorized
causes, such as to comply with procedural due process when terminating an
employee the following must be observed: (1) the employer should serve a
written notice both to the employees and to the Department of Labor and
Employment at least one month prior to the intended date of termination; and
(2) the employer should pay the employee separation pay under the Labor Code.
3.
Is
the procedure for dismissal for just cause the same with the procedure for
dismissal for authorized cause? Please enumerate the procedure for each.
Answer: No. To comply with procedural due process when
terminating an employee for authorized causes, the following must
be observed: (1) the employer should serve a written notice both to the
employees and to the Department of Labor and Employment at least one month
prior to the intended date of termination; and (2) the employer should pay the
employee separation pay under the Labor Code while for dismissal of an
employee for just cause, due process involves the two-notice rule: a) A
notice of intent to dismiss specifying the ground for termination, and giving
said employee reasonable opportunity within which to explain his or her side; b) A
hearing or conference where the employee is given opportunity to respond to the
charge, present evidence or rebut the evidence presented against him or her; c) A
notice of dismissal indicating that upon due consideration of all the
circumstances, grounds have been established to justify termination.
4.
What
is the two-notice rule? Is this applicable for both just cause dismissal and authorized
cause dismissal? Are they the same?
Answer: Yes. The law requires that the employer must furnish the
worker sought to be dismissed with two written notices before termination of
employment can be legally effected: (1) notice which apprises the employee of
the particular acts or omissions for which his dismissal is sought; and (2) the
subsequent notice which informs the employee of the employer's decision to
dismiss him. Failure to comply with the requirements taints the dismissal with
illegality. This procedure is mandatory, in the absence of which any judgment
reached by management is void and inexistent.
5.
What
is required to be stated in the notices? (Ruling in the case of King of King
Transport Inc vs Mamac)
Answer: The
written notice to be served on the employees should contain the specific causes
or grounds for termination against them, and a directive that the employees are
given the opportunity to submit their written explanation within a reasonable
period. "Reasonable opportunity" under the Omnibus Rules means every
kind of assistance that management must accord to the employees to enable them
to prepare adequately for their defense.15 This should be construed as a period of
at least five (5) calendar days from receipt of the notice to give the
employees an opportunity to study the accusation against them, consult a union
official or lawyer, gather data and evidence, and decide on the defenses they
will raise against the complaint. Moreover, in order to enable the employees to
intelligently prepare their explanation and defenses, the notice should contain
a detailed narration of the facts and circumstances that will serve as basis
for the charge against the employees. A general description of the charge will
not suffice. Lastly, the notice should specifically mention which company
rules, if any, are violated and/or which among the grounds under Art. 282 is
being charged against the employees.
x xx
After determining that
termination of employment is justified, the employers shall serve the employees
a written notice of termination indicating that: (1) all circumstances
involving the charge against the employees have been considered; and (2)
grounds have been established to justify the severance of their employment.
6.
Supposing
the employer merely gave a notice of preventive suspension stating that the
employee will be placed on preventive suspension pending investigation, would
that be sufficient?
Answer: No. Preventive Suspension and Investigation Do Not
Replace Two Notice Requirement of Due Process.
7.
Supposing
the notice was given to the union with which the employee is affiliated, would
that suffice? Why or why not?
Answer: In the case of Century Textile Mills, Inc., et al. vs.
National Labor Relations Commission, et al., G.R. No. 77859, May 25, 1988, the
court held, the employer's "prior consultation" with the
labor union with which the employee is affiliated is legally insufficient. The
rights of an employee whose services are sought to be terminated to be informed
beforehand of his proposed dismissal (or suspension) as well as of the reasons
therefor, and to be afforded an adequate opportunity to defend himself from the
charges levelled against him, are rights personal to the employee. Those rights
are not satisfied by the employer's obtaining the consent of or consulting with
the labor union. Such consultation or consent is not a substitute for actual
observance of those rights of the employee. The employee can waive those rights,
if he chooses, but the union cannot waive them for him.
Notice and
opportunity to be heard must be accorded by an employer even though the
employee does not affirmatively demand them.
8.
What
does “ample opportunity to be heard” mean? When should it be given?
Answer: By "ample opportunity" is meant every
kind of assistance that management must accord to the employee to enable him to
prepare adequately for his defense. Under the rules indeed, the worker may
be provided with a representative (Ruffy vs. National Labor Relations
Commission and Central Azucarera Don Pedro, G.R. No. 84193, February 15, 1990).
An employee must
be given notice and an ample opportunity prior to his dismissal to
adequately prepare for his defense.
9.
Is
it required that the employee be assisted by a counsel during investigatory
hearing?
Answer: Yes, in the case of Lorlene A. Gonzales vs. Ateneo De
Davao University, G.R. No. 125735, August 26, 1999 , wherein a teacher was
terminated without the assistance of a representative, the Court held: Compliance
entails the twin requirements of procedural and substantial due process. Ample
opportunity must be afforded the employee to defend herself either personally
and/or with assistance of a representative; to know the nature of her offense;
and, to cross examine and confront face to face the witnesses against her.
Likewise, due process requires that the decision must be based on established
facts and on a sound legal foundation.
10. If the penalty imposed by the employer is
merely suspension, is it required to apply the two notice rule?
Answer: Yes, in the case
of De Vera vs. National Labor Relations Commission and Bank of the Philippine
Islands, Inc., G.R. No. 93070, August 9, 1991, the Court held, the Notice of
Preventive Suspension cannot be considered adequate notice since the objectives
of the petitioner's preventive suspension, merely to ascertain the extent of
the loss to the bank and to pinpoint responsibility of the parties involved,
and not to apprise the petitioner of the causes of his desired dismissal.
11. Supposing there is an
existing CBA with a union security clause and the union notified the company
that Mr. X, an employee of the company and a member of the union, has been
expelled from the union, is it still required for the company to comply with
the procedural due process or is it an automatic dismissal upon being notice of
the expulsion of Mr. X? Please explain.
Answer: Yes. In the case of Carino vs. NLRC, G.R. No. 91086, May
8, 1990, the High Court opined that the company should have given Carino a
chance to explain his side of the controversy with the union. Notwithstanding
the union's security clause in the CBA, the Company should have reasonably
satisfied itself by its own inquiry that the Union had not been merely acting
arbitrarily and capriciously in impeaching and expelling Carino.
The right of an employee to be informed
of the charges against him and to reasonable opportunity to present his side in
a controversy with either the company or his union, is not wiped away by a
union security clause or a union shop clause in a CBA. An employee is entitled
to be protected not only from a company which disregards his rights but also
from his own union the leadership of which could yield to the temptation of
swift and arbitrary expulsion from membership and, hence, dismissal from his
job.
12. In relation to question no.
11, is the strict requirement of procedural due process applicable when there
is a union security clause? What is/are required of the employer?
Answer:
Yes. As opined in the of Carino vs. NLRC, G.R. No. 91086, May 8, 1990.
In
terminating the employment of an employee by enforcing the union security
clause, the employer needs only to determine and prove that: (1) The union
security clause is applicable; (2) The union is requesting for enforcement of
the union security provisions in the CBA; and (3) There is sufficient evidence
to support the union's decision to expel the employee from the union. (Alabang
Country Club vs. NLRC, G.R. No. 170287, February 14, 2008.)
13. Is a hearing indispensable
part of due process in termination for just cause? What are the instances when
hearing is not required? How about in termination for authorized cause, is
hearing required?
Answer: No hearing is needed if the employee has admitted
his guilt. All that is needed is to inform the employee of the findings of the
management. Due Process in Authorized Causes; Two Notices Required but not a
Hearing.
14. Who has the burden of proof
in termination cases? Why?
Answer: In termination cases, the
burden of proof rests upon the employer to show that the dismissal is for just
and valid cause. Failure to do so would necessarily mean
that the dismissal was not justified and, therefore, was illegal.
Where the termination cases involve all Filipino workers
recruited and deployed to overseas employment, the burden devolves upon both
the foreign-based employer and the employment agency or recruitment entity
which recruited the worker, for the latter is not only the agent of the former.
15. What is the required quantum
of proof/evidence? What does it mean?
Answer:
the required quantum of proof/evidence is substantial evidence. Substantial
evidence is more than mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion
16. Supposing the employer
condoned the misconduct of the employee, what is/are the effect/s?
Answer: An employer may,
by condonation or waiver of the conduct of his employees, preclude himself from
subsequently asserting the right to discharge them for cause. Having condoned
the misconduct of the employee and pardoned the latter, he is deemed to have
lost or waived his right to insist on the employee's acts as ground for
dismissal.
The retention of an employee, however,
after the actual discovery of an act of misconduct on his part will, in some
circumstances, warrant the inference that the act has been condoned, so as to
be no longer available as a ground of dismissal
17. In authorized cause termination, is it
required that the notice be given to each and every employee or would a notice
posted in the company’s bulletin board be sufficient already?
Answer: Yes. In a case SANGWOO PHILIPPINES, INC. and/or SANG IK JANG, JISSO
JANG, WISSO JANG and NORBERTO TADEO vs. SANGWOO PHILIPPINES, INC. EMPLOYEE UNION –
OLALIA. G.R. No. 173154. December 9, 2013, involving a company’s notice of
closure of its business, the Court held:
“The
mere posting on the company bulletin board does not, however, meet the
requirement under Article [297] of "serving a written notice on the
workers."The purpose of the written notice is to
inform the employees of the specific date of termination or closure of business
operations, and must be served upon them at least one month before the date of effectivity
to give them sufficient time to make the necessary arrangement. In
order to meet the foregoing purpose, service of the written notice must be made
individually upon each and every employee of the company”
18. For termination due to
disease, is the two-notice rule also application?
Answer: Yes. MARLO A.
DEOFERIO vs. INTEL TECHNOLOGY PHILIPPINES, INC. and/or MIKE WENTLING. G.R. No.
202996. June 18, 2014 citing the
case of Sy v. Court of Appeals39 and Manly Express, Inc. v. Payong, Jr.,40 promulgated in 2003 and 2005,
respectively, the Court finally pronounced the rule that the employer must
furnish the employee two written notices in terminations due to disease,
namely: (1) the notice to apprise the employee of the ground for which his
dismissal is sought; and (2) the notice informing the employee of his
dismissal, to be issued after the employee has been given reasonable
opportunity to answer and to be heard on his defense. These rulings reinforce
the State policy of protecting the workers from being terminated without cause
and without affording them the opportunity to explain their side of the
controversy.
19. Why is voluntary arbitration
considered as substantive compliance of the mandatory notice required by the
law?
Answer: “The voluntary arbitration proceedings more than
satisfied the intendment of the law considering that the parties were accorded
the benefit of a hearing, in addition to the right to present their respective
position papers and documentary evidence.” 4Revidad vs. NLRC and AG 8c P, G.R.
No. 111105, June 27, 1995.
20. What is preventive suspension?
Is it valid?
Answer: The authority of an employer to place an employee under
preventive suspension is not found in the Labor Code but in the rules
implementing the Code, specifically Book V, Rule XXIII, as amended by D.O. No.
9, June 21,1997 quoted below in part:
SEC. 8. Preventive suspension. — The employer may place
the worker concerned under preventive suspension if his continued employment
poses a serious and imminent threat to the life or property of the employer or of
his co-workers. It is valid.
21. When is there a valid
preventive suspension? When is preventive suspension invalid?
Answer: In the case of Globe-Mackay Cable And Radio Corporation
vs. National Labor Relations Commission and Salazar, G.R. No. 82511, March 3,
1992 , the Court cited Soriano vs. NLRC, G.R. No. 75510, October 27,
1987., “By itself, preventive suspension
does not signify that the company has adjudged the employee guilty of the
charges she was asked to answer and explain. Such disciplinary measure is
resorted to for the protection of the company's property pending investigation
of any alleged malfeasance or misfeasance committed by the employee.”
Thus, preventive
suspension is valid if the presence of the employee poses a serious and imminent
threat to life or property of employer and co-employee.
On the other
hand, a preventive suspension is invalid if the continued presence of the
subject employee does not pose a serious and imminent threat to the life or
property of the employer or co-employees. (Global Incorporated vs. Atienza, G.R
Nos. L-51612-13, July 22, 1986.)
22. Is there a required period
for a valid preventive suspension? What would be the effect if the period
exceeded the period given?
Answer: Yes. Preventive suspension, being only an intermediate
protective measure, cannot last for an indefinite period. The Code's
implementing rules provide that no preventive suspension shall last longer than
thirty (30) days. The effect would be a constructive dismissal. 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.
Hyatt Taxi Services, Inc. vs. Catinoy, G.R. No. 143204, June 26, 2001
23. What is the principle of
progressive disciplining?
Answer: Light offenses deserve light
penalties and only grave offenses deserve grave penalties.
24. Is the employer justified if
aside from dismissal, the penalty of forfeiture of benefit was also given?
Answer: Depends. As provided by law, the fundamental rule
is that the penalty must be commensurate to the offense. Court rulings, no less
than management studies, insist on adherence to the principle of progressive
disciplining: light offenses deserve light penalties and only grave offenses
deserve grave penalties. However, diverse factors should be considered, such as
the employee's long years of otherwise satisfactory service, the penalty
imposed in previous similar offenses, and even the amount of money or value
involved.
25. May past offense be tacked
on to the latest offense to justify dismissal?
Answer: As a general rule has always been that such
previous offenses may be so used as valid justification for dismissal from work
only if the infractions are related to the subsequent offense upon which basis
the termination of employment is decreed The previous infraction may be used
provided it has a bearing to the proximate offense warranting dismissal
26. When and where should
illegal dismissal cases be filed?
Answer: The complaint should be filed within four (4)
years from the time the employee is dismissed at the Regional Branch of the
Commission.
Post Employment: Termination of
Employment Part 6: Consequences of Termination
1.
What
are the four kinds of separation pay?
Answer: Under present law and jurisprudence separation pay may be
viewed in four ways or contexts:
(a) separation pay as employer's statutory obligation in
cases of legal termination due to authorized causes under Article 283 or 284;
(b) separation pay as financial assistance, as an act of
social justice, even in cases of legal dismissal under Article 282;
(c) separation pay in lieu of reinstatement in illegal
dismissal cases where the employee is ordered reinstated but reinstatement is
not feasible;
(d) separation pay as an employment benefit granted in a
CBA or company policy.
2.
What
is (again) the amount of separation pay for termination because of authorized
causes?
Answer: The amounts of separation pay specified in Articles 283
and 284 vary according to the cause of the termination. For terminations
because of introduction of labor-saving device or of redundancy, the separation
pay is equivalent
to whichever is higher of either (a) one-month pay or (b) one-month pay
multiplied by the employee's years of service, a fraction of at least six
months being counted as one year.
For terminations caused by retrenchment or closure or
cessation of operations not due to serious business losses, the separation pay
is lower than that for the preceding two causes precisely because the business
is caught in financial straits. The separation pay is equivalent to whichever
is higher of either (a) one-month pay or (b) one-half month pay multiplied by
the employee's years of service, a fraction of at least six months being
considered as one year. This also is the formula applicable to separation due
to disease under Article 284.
If the closure or cessation of business is due to serious
business losses or financial reverses, no separation need be paid at all, as
ruled in North Davao Mining case.
3.
How
do we compute the separation pay? What are included as basis for the
computation?
Answer:
It is error not to
integrate the allowance with the basic salary in the computation of the
separation pay. The salary base properly
used in computing the separation pay should include not just the basic
salary but also the regular allowances that an employee has been receiving.
In the computation of
backwages and separation pay, account must be taken not only of the basic
salary of the employee but also of her transportation and emergency living
allowances
4.
Can the employer give more than what is required of the law?
Answer:
5.
Generally,
if the termination is due to just causes, there is no separation pay. Is this an absolute rule? Stated otherwise,
is there any instance wherein the employee can be entitled to separation pay
even if the termination is due to just cause?
Answer:
No. concept of separation pay serves as an exception to Article 282,
ordinarily, no separation pay need be paid to the employee. if the act
committed by the employee does not amount to serious misconduct or does not
reflect on the employee's moral
character, the Court may require the employer to pay as a measure of social
justice, "separation pay" or "financial assistance" (or
whatever name) to the employee. This
kind of separation pay is not a statutory requirement. Rather, it is an
exception crafted by the Court to clothe with compassion a stiff and
indiscriminating dismissal action based on the so-called "just
causes."
6.
Please
discuss the “descerning compassion” doctrine in PLDT vs NLRC?
Answer:
Philippine
Long Distance Telephone Co. vs. NLRC and M. Abucay, G.R. No. 80609, August 23,
1988, the court opined:
Rule
in the Labor Code; Exception. — The rule embodied in the Labor Code is that a
person dismissed for cause as defined therein is not entitled to separation
pay. The cases cited [where separation pay was allowed] constitute the
exception, based upon considerations of equity. Equity has been defined as
justice outside law, being ethical rather than jural and belonging to the
sphere of morals than of law.
Award
of separation pay distinguished. — There should be no question that when it
comes to such valid but not iniquitous causes as failure to comply with work
standards, the grant of separation pay to the dismissed employee may be both
just and compassionate, particularly if he has worked for some time with the
company.
Financial
Assistance Now Depends on Cause of Dismissal. — We hold that henceforth
separation pay shall be allowed as a measure of social justice only in those
instances where the employee is validly dismissed for causes other than serious
misconduct or those reflecting on his moral character.
For
Whom Is Social Justice. — The policy of social justice is not intended to
countenance wrongdoing simply because it is committed by the underprivileged.
At best it may mitigate the penalty of every humane society but only when the
recipient is not a rascal claiming an undeserved privilege. Social justice
cannot be permitted to be refuge of scoundrels any more than can equity be an
impediment to the punishment of the guilty. Those who invoke social justice may
do so only if their hands are clean and their motives blameless and not simply
because they happen to be poor. This great policy of our Constitution is not
meant for the protection of those who have proved they are not worthy of it,
like the workers who have tainted the cause of labor with the blemishes of
their own character.
Applying
the above considerations, we hold that the grant of separation pay in the case
at bar is unjustified. The private respondent has been dismissed for
dishonesty, as found by the labor arbiter and affirmed by the NLRC, and as she
herself has impliedly admitted.
Further
it gives separation pay, in the name of compassionate justice, to an employee
dismissed for a "just cause" under Article 282, with two exceptions:
(1) serious misconduct and (2) other offense reflecting on his moral character
7.
Please
discuss Ruling in Toyota Motor Phil Corp Workers Assoc vs NLRC GR No. 158786
and GR No. 156789 and the ruling in International School vs International
School Alliance (Feb 5, 2014), as regards the grant of financial assistance or
separation pay for termination due to just cause.
Answer:
The PLDT precedent gives separation
pay, in the name of compassionate justice, to an employee dismissed for a
"just cause" under Article 282, with two exceptions: (1) serious
misconduct and (2) other offense reflecting on his moral character.
These two exceptions have been expanded as they now
include the other offenses from clause (a) to (d) of Article 282. Dismissal
under these clauses precludes separation pay or financial assistance. However,
for the analogous causes (clause e), the labor court "may opt to grant
separation pay anchored on social justice."
While International School vs
International School Alliance (Feb 5, 2014), The policy of social justice is
not intended to countenance wrongdoing simply because it is committed by the
underprivileged. At best it may mitigate the penalty but it certainly will not
condone the offense. Compassion for the poor is an imperative of every humane
society but only when the recipient is not a rascal claiming an undeserved
privilege. Social justice cannot be permitted to be refuge of scoundrels any
more than can equity be an impediment to the punishment of the guilty. Those
who invoke social justice may do so only if their hands are clean and their
motives blameless and not simply because they happen to be poor. This great
policy of our Constitution is not meant for the protection of those who have
proved they are not worthy of it, like the workers who have tainted the cause
of labor with the blemishes of their own character.
In Toyota Motor Phils. Corp.
Workers Association v. National Labor Relations Commission, we modified our
ruling in PLDT in this wise:
In all of the foregoing situations, the Court declined
to grant termination pay because the causes for dismissal recognized under Art.
282 of the Labor Code were serious or grave in nature and attended by willful or
wrongful intent or they reflected adversely on the moral character of the
employees. We therefore find that in addition to serious misconduct, in
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.
8.
What does SPIR mean? Why is this resorted to?
Answer:
9.
Is
the 4th kind of separation pay mandatory? What is the basis of the 4th type of
separation pay?
Answer: No. It is in the form of a perquisite or employment
benefit whose demandability depends on the terms of its grant through a
collective bargaining agreement or voluntary company policy or established
practice. It may be called resignation pay or gratuity. Its standard requisite
is that the employee has rendered a specified minimum length of service to the
employee.
The CBA is the basis for 4th
type of separation
10. What are the reliefs which
may be given to an illegally dismissed employee? When and why are those reliefs
granted?
Answer:
Illegally dismissed employee is
entitled to two reliefs: backwages and reinstatement. Backwages
and reinstatement are separate and distinct reliefs given to an illegally
dismissed employee in order to alleviate the economic damage brought about by
the employee's dismissal. "Reinstatement is a restoration to a state from
which one has been removed or separated" while "the payment of
backwages is a form of relief that restores the income that was lost by reason
of the unlawful dismissal."
Backwages, in general,
are granted on grounds of equity for earnings which a worker or employee has
lost due to his illegal dismissal. Reinstatement, on the other hand, means
restoration to a state of condition from which one had been removed or
separated
11. How is back wages different
from separation pay? How about to unpaid salaries?
Answer: Separation pay is granted where reinstatement is no
longer advisable because of strained relations between the employee and
employer. Backwages represent compensation that should be earned but not
collected because of the unjust dismissal. The basis for computing the two are
different, the first being usually the length of the employee's service and the
second, the actual period when he was unlawfully prevented from working.
Separation pay is the amount that an employee receives at
the time of his severance from the service while payment of backwages is a form
of relief that restores the income that was lost by reason of unlawful
dismissal; separation pay, in contrast, is oriented towards the immediate
future, the transitional period the dismissed employee must undergo before locating
a replacement job. Santos vs. NLRC, et al, G.R. No. 76721, September 21,1987
12. Supposing in the complaint, the complainant
failed to claim backwages in the illegal dismissal case, would that mean that
the employee is not entitled to backwages?
Answer: It is evident that the award of backwages resulting from
the illegal dismissal of an employee is a substantive right. Thus, the failure
to claim backwages in a complaint for illegal dismissal has been held to be a
mere procedural lapse which cannot defeat a right granted under substantive law
13. If the employee was found to
be illegally dismissed but was not awarded backwages, can the higher court, on
appeals grant the backwages?
Answer: As a rule, full backwages are computed from the time of
the employee's illegal dismissal until his actual reinstatement, but since in
this case, reinstatement is not possible, the backwages must be computed from
the time of the petitioners' illegal dismissal until the finality of our
decision herein.
While as a general rule, a party who has not appealed is not
entitled to affirmative relief other than the ones granted in the decision of
the court below, law and jurisprudence authorize a tribunal to consider errors,
although unassigned, if they involve (1) errors affecting the lower court's
jurisdiction over the subject matter, (2) plain errors not specified and (3)
clerical errors. In this case, the failure of the Labor Arbiter and the public
respondent NLRC to award backwages to the private respondent, who is legally
entitled thereto having been illegally dismissed, amounts to a "plain
error" which we may rectify in this petition, although private respondent
Dagni did not bring any appeal regarding the matter in the interest of
substantial justice.... (Aurora Land Projects Corp. vs. NLRC,
G.R. No. 114733, January 2, 1997)
The fact that the NLRC
did not award backwages to the respondents or that the respondents themselves
did not appeal the NLRC decision does not bar the Court of Appeals from
awarding backwages. While as a general rule, a party who has not appealed is
not entitled to affirmative relief other than the ones granted in the decision
of the court below, the Court of Appeals is imbued with sufficient authority
and discretion to review matters, not otherwise assigned as errors on appeal,
if it finds that their consideration is necessary in arriving at a complete and
just resolution of the case or to serve the interests of justice or to avoid
dispensing piecemeal justice. (St
Michael's Institute, et al. vs. Santos, et al., G.R. No. 145280, December
4,2001)
14. What is the basis of the
computation of backwages?
Answer: An unqualified award of backwages means that the employee
is paid at the wage rate at the time of his dismissal. And the Court has
declared that the base figure to be used in the computation of backwages due
to the employee should include not just the basic salary, but also the regular
allowances that he had been receiving such as the emergency living allowances
and the 13th-month pay mandated under the law.
15. Supposing a month after the
termination of the employee, the employer gave a 15% salary increase to all
employees, will the salary increase be included in the basis for the
computation of the back wages?
Answer: Yes. Because as provided by law, employee is paid at the
wage rate at the time of his dismissal.
16. What is the reckoning period
of the computation of the back wages?
Answer: The base figure in
the determination of full backwages is fixed at the salary rate received by the
employee at the time he was illegally dismissed.
The backwages should be computed from the time of the
illegal dismissal which is usually also the time the employee's salary started
to be withheld.
17. What is the prescriptive
period for filing of illegal dismissal case?
Answer: The prescriptive period for filing an illegal dismissal
complaint is four years from the time the cause of action accrued (G.R. No. 175689. August 13, 2014
GEORGE A. ARRIOLA vs.
PILIPINO STAR .NGAYON, INC. and/or MIGUEL G. BELMONTE)
18. Please discuss the ruling in
Bani Rural Bank vs De Guzman particularly that which pertains to the rules on
the period covered by back wages and separation pay as alternative to
reinstatement.
Answer:
An illegally
dismissed employee is entitled to two reliefs: backwages and reinstatement. The
two reliefs provided are separate and distinct. In instances where
reinstatement is no longer feasible because of strained relations between the
employee and the employer, separation pay is granted. In effect, an illegally
dismissed employee is entitled to either reinstatement, if viable, or
separation pay if reinstatement is no longer viable, and backwages.
The normal
consequences of respondents illegal dismissal, then, are reinstatement without
loss of seniority rights, and payment of backwages computed from the time
compensation was withheld up to the date of actual reinstatement. Where
reinstatement is no longer viable as an option, separation pay equivalent to
one (1) month salary for every year of service should be awarded as an
alternative. The payment of separation pay is in addition to payment of
backwages.
The computation of
separation pay is based on the length of the employee s service; and the
computation of backwages is based on the actual period when the employee was unlawfully
prevented from working.
The basis of
computation of backwages
The computation of
backwages depends on the final awards adjudged as a consequence of illegal
dismissal, in that:
First, when reinstatement is ordered, the general concept
under Article 279 of the Labor Code, as amended, computes the backwages from
the time of dismissal until the employee’s reinstatement. The computation of
backwages (and similar benefits considered part of the backwages) can even
continue beyond the decision of the labor arbiter or NLRC and ends only when
the employee is actually reinstated.
Second, when separation pay is ordered in lieu of
reinstatement (in the event that this aspect of the case is disputed) or
reinstatement is waived by the employee (in the event that the payment of
separation pay, in lieu, is not disputed), backwages is computed from the time
of dismissal until the finality of the decision ordering separation pay.
Third, when separation pay is ordered after the finality of
the decision ordering the reinstatement by reason of a supervening event that
makes the award of reinstatement no longer possible (as in the case), backwages
is computed from the time of dismissal until the finality of the decision
ordering separation pay.
Payment of backwages and
separation pay cannot be computed from the time the respondents allegedly
expressed their wish to be paid separation pay. Thus, the computation of the
respondents' backwages must be from the time of the illegal dismissal from
employment until the finality of the decision ordering the payment of
separation pay.
19. What does “full back wages” mean? Please
compare the rules and ruling in Mercury Drugs Co Inc vs CIR, RA 6715, Alex
Ferrer vs NLRC, Osmalik Bustamante vs NLRC.
Answer:
GR: employee who is unjustly dismissed is entitled to FULL
backwages from the time of his dismissal to actual reinstatement.
It
means the award of backwages to an employee could be reduced by subtracting the
wages actually earned by him from employment during the period of his
separation, or the wages which he could have earned had he been diligent enough
to find a job.
This was however superceded by Mercury Drug Co., Inc. vs. Court
of Industrial Relations (56 SCRA 694 [1974]) by adopting the policy of granting
backwages for a maximum period of three (3) years without qualification and
deduction. This policy became known as the "Mercury Drug rule."
20. Supposing the employee was
dismissed when he was already four years short of retirement, the case dragged
on for 5 years until it reached finality, will he be receiving backwages for
the 5 years or more?
Answer:
Yes. as provided
in the case Osmalik Bustamante, et al vs. NLRC and Evergreen Farms, G.R. No.
111651, November 28, 1996, wherein the Justice Padilla's well-reasoned dissent
in the 1993 Pines City case finally became the Supreme Court's unanimous view.
According to him,” employee who is unjustly dismissed is entitled to FULL
backwages from the time of his dismissal to actual reinstatement.”
The underlying reason for this ruling
is that the employee, while litigating the legality (illegality) of his
dismissal, must still earn a living to support himself and family, while full
backwages have to be paid by the employer as part of the price or penalty he
has to pay for illegally dismissing his employee
21. Please summarise and
familiarise the ruling in the cases of Wenphil Corp vs NLRC, Serrano vs NLRC,
Gabon vs NLRC and JAKA Food vs Pacot.
Answer:
The Wenphil Corp vs NLRC doctrine says essentially
that a dismissal for a valid reason is legal and valid, but the employer who
does not observe procedural due process must pay some indemnity. In the
Serrano Modifies Wenphil: Where Due Process is Disregarded, Full Backwages
must be Awarded.
In the Gabon vs NLRC case, Procedurally, (1) if the dismissal is
based on a just cause under Article 282, the employer must give the employee
two written notices and a hearing or opportunity to be heard if requested by
the employee before terminating the employment: a notice specifying the grounds
for which dismissal is sought [sic] a hearing or an opportunity to be heard and
after hearing or opportunity to be heard, a notice of the decision to dismiss;
and (2) if the dismissal is based on authorized causes under Articles 283 and
284, the employer must give the employee and the Department of Labor and
Employment written notices 30 days prior to the effectivity of his separation.
From the foregoing rules four possible situations may be
derived: (1) the dismissal is for a just cause under Article 282 of the Labor
Code, for an authorized cause under Article 283, or for health reasons under
Article 284, and due process was observed; (2) the dismissal is without just or
authorized cause but due process was observed; (3) the dismissal is without
just or authorized cause and there was no due process; and (4) the dismissal is
for just or authorized cause but due process was not observed.
JAKA Revises
Agabon: Higher Indemnity in the Authorized Causes. In a nutshell, Agabon holds that a dismissal
attended by a valid cause, either under Article 282, or 283, or 284, is legal
and valid, but as penalty for not observing due process the employer must pay
indemnity. Just about five months after its promulgation, this ruling came
under review by the Supreme Court. The Jaka Food decision does not overturn
Agabon but, in a manner of speaking, fine-tunes it.
Whereas Agabon s award of nominal damages does not
distinguish whether the employee's termination is based either on "just"
or on "authorized" causes, JAKA now makes a distinction, thus:
(1) if the dismissal is based on a just cause under
Article 282 but the employer failed to comply with the notice requirement, the
sanction to be imposed upon him should be tempered because the dismissal
process was, in effect, initiated by an act imputable to the employee; (2) if
the dismissal is based on an authorized cause under Article 283 but the
employer failed to comply with the notice requirement, the sanction should be
stiffer because the dismissal was initiated by the employer's exercise of his
management prerogative.
Please note here that if the dismissal is
with valid cause but invalid procedure, it is not merely “defective”, but
already considered as “illegal” dismissal.
Hence in order to be a valid dismissal both the cause and procedure must
be valid.
22. If there is a finding of
illegal dismissal, should the remedy of back wages always carry with it the
remedy of reinstatement?
Answer: Though the grant of reinstatement commonly carries with
it an award of backwages, the inappropriateness or nonavailability of one does
not carry with it the inappropriateness or nonavailability of the other.
23. What does reinstatement
mean?
Answer:
Reinstatement restores the employee who was unjustly dismissed to the position
from which he was removed, that is, to his status quo ante dismissal.
24. Within how many days must
the employees come to their employer to have themselves reinstated?
Answer:
When the employer is guilty of unfair
labor practice, the Minister of Labor's order for reinstatement follows as a
matter of course
25. Can there be reinstatement
without backwages? if yes, give instances. How about backwages without
reinstatement? Give instances.
Answer:
Yes. In certain circumstances reinstatement without
backwages may be justified. As provided by law, The reinstatement is proper,
but without the award of backwages, considering the good faith of the employer
in dismissing him.
For instance, Facts: "S," a supervisor-leadman
of Meralco, facilitated the processing of an application for electrical
services as well as the required documentation for said application, in
consideration of the amount of P7,000. At that time, the area where the
residence of the applicant was located was not yet within the serviceable point
of Meralco. "S" was found guilty of breach of trust and violation of
company rules, the penalty for which ranges from reprimand to dismissal depending
on the gravity of the offense. He, however, had been with the company for 20
years without any previous derogatory record, in addition to the fact that the
company had awarded him two commendations for honesty. (Manila Electric Co. vs.
National Labor Relations Commission, G.R. No. 78763, July 12, 1989)
Yes. aside from separation pay. when reinstatement is no longer feasible because
of stained relation between employer and employee because of the litigation, Reinstatement
Not Feasible Due to Changed Circumstances (Not Sure)
26. Please discuss the strained
relation principle. Will this apply only to cases where the position of the
employee requires trust and confidence?
Answer:
Where the relationship of employer to employee is so strained and ruptured as
to preclude a harmonious working relationship should reinstatement of the
employee be decreed, the latter should be afforded the right to separation pay
so that he can be spared the agony of having to work anew with the employer
under an atmosphere of antipathy and antagonism and the employer does not have
to endure the continued services of the employee in whom it has lost confidence.
Yes. Strained relation
principle applies to officer in a key position such as one who is a vice
president for marketing can work effectively only if said
employee enjoys the full trust and confidence of top management.
Qualification. it should be proved that
the employee concerned occupies a position where he enjoys the trust and
confidence of his employer; and that it is likely that if reinstated, an
atmosphere of antipathy and antagonism may be generated as to adversely affect
the efficiency and productivity of the employee concerned.
Besides,
no strained relations should arise from a valid and legal act of asserting
one's right; otherwise, an employee who shall assert his right could be easily
separated from the service, by merely paying his separation pay on the pretext
that his relationship with his employer had already become strained.
The
rule that "strained relations" may be invoked only against employees
whose positions demand trust and confidence, or whose differences with their
employer are of such nature or degree as to preclude reinstatement.
Under the doctrine of strained relations, the payment
of separation pay has been considered an acceptable alternative to
reinstatement when the latter option is no longer desirable or viable. On the
one hand, such payment liberates the employee from what could be a highly
oppressive work environment. On the other, the payment releases the employer
from the grossly unpalatable obligation of maintaining in its employ a worker
it could no longer trust.
Nevertheless, the principle of strained
relations should not be used so indiscriminately as to bar the reinstatement of
illegally dismissed workers, especially when they themselves have not indicated
any aversion to returning to work. It is only normal to expect a certain degree
of antipathy and hostility to arise from a litigation between parties, but not
in every instance does such an atmosphere of antagonism exist as to adversely
affect the efficiency and productivity of the employee concerned [Coca-Cola
Bottlers Phils., Inc. vs. Daniel, G.R. No. 156893, June 21, 2005].
27. Is SPIR the same with
backwages?
Answer: No.
The grant of separation pay in lieu of
reinstatement is a substitute for immediate and continued reemployment with the
employer. The grant of separation pay does not redress the injury that is
intended to be relieved by the second remedy of backwages, i.e., the loss of
earnings that would have accrued to the dismissed employee during the period
between dismissal and reinstatement.
Payment of backwages is a form of
relief that restores the income that was lost by reason of unlawful dismissal;
separation pay, in contrast, is oriented towards the immediate future, the
transitional period the dismissed employee must undergo before locating a
replacement job.
28. What is the basis of the
SPIR?
Answer:
Payment of backwages is a form of
relief that restores the income that was lost by reason of unlawful dismissal;
separation pay, in contrast, is oriented towards the immediate future, the
transitional period the dismissed employee must undergo before locating a
replacement job.
29. What is the remedy if the
employer fails or is unable to comply with the final judgement for
reinstatement? Please discuss the ruling in the case of Quijano vs Bartolabac.
Answer:
If
the employer fails or is unable to comply with a final and executory judgment
for the reinstatement of an employee, the plain and obvious remedy is simply to
compel the employer by writ of execution to effect the reinstatement and pay
the amounts decreed.
Facts:
Complainant relates that he filed with Labor Arbiter Bartolabac a motion for
execution on 9 December 1998 but despite the final resolution of his case,
Bartolabac issued an order that in effect changed the tenor of the final
judgment. While the decision of the Supreme Court had mandated complainant's
reinstatement, Bartolabac instead awarded backwages and separation pay. For his
part, Commissioner Quimpo alleges that his inclusion in the present
administrative case was due to his participation in disposing of the
corporation's appeal on the issue of complainant's reinstatement as
self-service attendant. He asserts that by law, the Commissioner has exclusive
appellate jurisdiction to hear and decide all decisions, awards or orders
rendered by the labor arbiter.
The
Court referred this case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. On 6 May 2003, the IBP submitted its
resolution recommending dismissal of the complaint against respondents.
Rulings:
The Court is unyielding in its adjudication that complainant must be reinstated
to his former position as warehouseman or to a substantially equivalent
position. This was stated in its Decision dated 8 July 1998, reiterated in the
Resolution dated 5 July 1999, and again stressed in the Resolution dated 17
November 1999. In the latter resolution, it was particularly expressed that:
Indeed,
private respondent's [Mercury Drug Corporation] contention, as erroneously
upheld by the labor arbiter, that there is no substantially equivalent position
for petitioner's reinstatement has been categorically discounted by this Court.
We took judicial notice of the fact that private respondent Mercury Drug
Corporation operates nationwide and has numerous branches all over the
Philippines. Petitioner, as warehouseman, occupied a clerical/rank and file
position in said company and we find it highly inconceivable that no other
substantially equivalent position exists to effect his reinstatement.
Clearly,
the Court is unwilling to accept the corporation and respondent labor arbiter's
reason that reinstatement is no longer feasible because the position of
warehouseman had already been abolished and there is no substantially
equivalent position in the corporation.
Both
respondents labor arbiter and commissioner do not have any latitude to depart
from the Court's ruling. The Decision in G.R. No. 126561 is final and executory
and may no longer be amended. It is incumbent upon respondents to order the
execution of the judgment and implement the same to the letter. Respondents
have no discretion on this matter, much less any authority to change the order
of the Court. The acts of respondents cannot be regarded as acceptable
discretionary performance of their functions as labor arbiter and commissioner
of the NLRC, respectively, for they do not have any discretion in executing a
final decision. The implementation of the final and executory decision is
mandatory.
30. What is payroll
reinstatement and when is this resorted to? What is the reason and
justification for payroll reinstatement?
Answer:
However, when the decision ordering
reinstatement is pending appeal to a higher tribunal, and the employer does not
want to accept the dismissed employee back to being physically employed in his
business, the employer has the option to reinstate the employee in the payroll.
This is called “payroll reinstatement” where it shall be obligatory on the part
of the employer to pay the wages of the dismissed employee during the period of
appeal. If the employee has been reinstated during the appeal period and such
reinstatement order is reversed with finality, the employee is not required
to reimburse whatever salary he received for he is entitled to such, more so if
he actually rendered services during the period [Genuino vs. NLRC, G.R.
No. 142732-33, December 4, 2007].
This option is based on practical
considerations. The employer may insist that the dismissal of the employee was
for a just and valid cause and the latter's presence within its premises is
intolerable by any standard; or such presence would be inimical to its interest
or would demoralize the coemployees. Thus, while payroll reinstatement would in
fact be unacceptable because it sanctions the payment of salaries to one not
rendering service, it may still be the lesser evil compared to the intolerable
presence in the workplace of an unwanted employee.
31. The NLRC ruled that the
employee was illegally dismissed and ordered the reinstatement of the
employee. Employer reinstated the
employee but at the same time filed appeal.
SC with finality overturned the ruling of the NLRC and held that the
dismissal was valid. Question, can the
employee be compelled to reimburse the employer of the salary the employee
received? Why or why not?
Answer:
NO.
“rationalizations and portrayals are
misplaced and are purely conjectural which, unfortunately, proceed from a
misunderstanding of the nature and scope of the relief of execution pending
appeal.
x
Execution pending appeal is interlinked with the right to
appeal. One cannot be divorced from the other. The latter may be availed of by
the losing party or a party who is not satisfied with a judgment, while the
former may be applied for by the prevailing party during the pendency of the
appeal. The right to appeal, however, is not a constitutional, natural or
inherent right. It is a statutory privilege of statutory origin and, therefore,
available only if granted or provided by statute. The law may then validly
provide limitations or qualifications thereto or relief to the prevailing party
in the event an appeal is interposed by the losing party. Execution pending
appeal is one such relief long recognized in this jurisdiction. The Revised
Rules of Court allows execution pending appeal and the grant thereof is left to
the discretion of the court upon good reasons to be stated in a special order.
Before its amendment by Section 12 of R.A. No. 6715,
Article 223 of the Labor Code already allowed execution of decisions of the
NLRC pending their appeal to the Secretary of Labor and Employment.
In authorizing execution pending appeal of the
reinstatement aspect of a decision of the Labor Arbiter reinstating a dismissed
or separated employee, the law itself has laid down a compassionate policy
which, once more, vivifies and enhances the provisions of the 1987 Constitution
on labor and the workingman.”
32. Please discuss and compare
the ruling in the cases of Roquero vs Phil Airlines Inc, Genuino vs NLRC, Garcia vs Phil Airlines Inc. and Pfiezer vs
Velasco.
Answer:
In the Roquero case (penned by Mr. Justice Puno) both the
CA and the SC reversed the order of reinstatement as they upheld the employee's
dismissal. Must the employee pay back the salary he received during the
reinstatement? The Court said no.
"We
reiterate the rule that technicalities have no room in labor cases where the
Rules of Court are applied only in a suppletory manner and only to effectuate
the objectives of the Labor Code and not to defeat them. Hence, even if the
order of reinstatement of the Labor Arbiter is reversed on appeal, it is
obligatory on the part of the employer to reinstate and pay the wages of the
dismissed employee during the period of appeal until reversal by the higher
court. On the other hand, if the employee has been reinstated during the appeal
period and such reinstatement order is reversed with finality, the employee is
not required to reimburse whatever salary he received for he is entitled to
such, more so if he actually rendered services during the period."
(Roquero vs. Philippine Airlines, Inc., G.R No. 152329, April 22, 2003.)
But a deviation occurred in Genuino v. NLRC, G.R. No.
142732-33, December 4, 2007. The Court in Genuino said:
“If the decision of the labor arbiter is later reversed
on appeal upon the finding that the ground for dismissal is valid, then the
employer has the right to require the dismissed employee on payroll
reinstatement to refund the salaries s/he received while the case was pending
appeal, or it can be deducted from the accrued benefits that the dismissed
employee was entitled to receive from his/her employer under existing laws,
collective bargaining agreement provisions, and company practices. However, if
the employee was reinstated to work during the pendency of the appeal, then the
employee is entitled to the compensation received for actual services rendered
without need of refund.
The divergent decisions caused the court to reexamine en
banc the question of reimbursement, and this was done some thirteen months
later in Garcia, et al. v. Philippine Airlines, G.R. No. 164856, January 20,
2009.
Garcia Drops Genuino and Reaffirms Roquero.
Garcia downplays the "stray posture" of Genuino
and reaffirms the no reimbursement doctrine in Roquero and conforming
rulings. The court explains in Garcia that pursuant to the police power,
the state may authorize an immediate implementation, pending appeal, of a
decision reinstating a dismissed or separated employee. The immediate
reinstatement is "a saving act" designed to stop a continuing threat
or danger to the survival or even the life of the employee and his family.
Moreover, the social justice principles of labor law outweigh or render
inapplicable the civil law doctrine of unjust enrichment.
Concurring with the no-reimbursement doctrine, Justice
Brion explains (among other points) that Article 223 grants the employee the
substantive right to receive his salary when his dismissal, already found
illegal by the labor arbiter, is elevated on appeal by the employer. Such
substantive right cannot be treated as a procedural matter that can be undone
and taken back when conditions change. In fine, therefore, the
no-reimbursement rule remains.
33. If the award or decision
contains an order of reinstatement, the rule is it is immediately
executory. Is this rule absolute? Can
there be an instant when immediate reinstatement cannot be made?
Answer: No. if dismissed employee's reinstatement would lead to a
strained relation between the employer and the employee or to an atmosphere of
antipathy and antagonism, the exception to the twin remedies of reinstatement
and payment of backwages can be invoked and reinstatement, which might become
anathema to industrial peace, could be held back pending appeal.
34. If there was no order of
reinstatement by the Labor Arbiter, can the NLRC award backwages for the period
when the appeal was pending with the NLRC?
Answer: If the labor arbiter has not ordered reinstatement of the
employee, the NLRC cannot award backwages for the period when the appeal was
pending at the NLRC. Reinstatement during appeal is warranted only when the
labor arbiter has ruled that the dismissed employee should be reinstated
35. Is reinstatement self-executory?
Would there be a difference in rules if the reinstatement is ruled by the Labor
Arbiter and if the reinstatement is ruled by the NLRC?
Answer: Yes. R.A. No. 6715 uses the phrase "shall
immediately be executory" without qualification, emphasizing the need for
prompt compliance.
According to the Court, Article 223, as
amended, is clear that an award for reinstatement shall be immediately
executory even pending appeal, and the posting of a bond by the employer shall
not stay the execution for reinstatement. To require the application for and
issuance of a writ of execution as prerequisites for the execution of a
reinstatement award would betray and run counter to the very object and intent
of Article 223, i.e., the immediate execution of a reinstatement order. The
Court concluded that henceforth, an award or order of reinstatement is
self-executory.
Reinstatement order of Labor Arbiter is
self-executory while NLRC's Reinstatement Order Not Self-Executory.
In the 2007 Panuncillo case the Court
clarifies that a reinstatement ordered by a Labor Arbiter is self-executory,
but a reinstatement order from the NLRC itself is not self-executory. To the
Labor Arbiter's order, the third paragraph of Article 223 applies; to the NLRC
order.
36. What kind of damages can the
illegal dismissed employee be entitled to?
Answer:
Note: This damages are awarded not by the Labor Arbiter
but by the Court of Proper jurisdiction (Civil Case)
Moral damages may be awarded to compensate one for diverse
injuries such as mental anguish, besmirched reputation, wounded feelings and
social humiliation. It is, however, not enough that such injuries have arisen.
It is essential that they have sprung from a wrongful act or omission of the
defendant which was the proximate cause thereof.
Exemplary Damages. Award of moral and exemplary damages in favor
of the employee who was illegally dismissed shall be upheld where the employee
had been harassed by the employer.
Attorney’s Fees. Note: In employment termination cases
attorney's fees are not recoverable where there is no sufficient showing of bad
faith on the part of private respondent [employer].
37. What is required in order
for moral damages to be awarded? How about for exemplary damages?
Answer:
Moral damages
may be awarded to compensate one for diverse injuries such as mental anguish,
besmirched reputation, wounded feelings and social humiliation. It is, however,
not enough that such injuries have arisen. It is essential that they have
sprung from a wrongful act or omission of the defendant which was the proximate
cause thereof.
As a rule, moral
damages are recoverable only where the dismissal or suspension of the employee was
attended by bad faith or fraud, or constituted an act oppressive to labor, or
was done in a manner contrary to morals, good customs or public policy.
The person claiming moral damages must
prove the existence of bad faith by clear and convincing evidence for the law
always presumes good faith.
Award of moral and exemplary damages
in favor of the employee who was illegally dismissed shall be upheld where the
employee had been harassed by the employer. Exemplary damages may be
awarded only if the dismissal was shown to have been effected in a wanton,
oppressive or malevolent manner
38. Who must shoulder the
liabilities arising from a wrongful dismissal? Please discuss the ruling as to
this issue in the case of Sunio vs NLRC.
Answer: general rule, persons liable for wrongful
dismissal.
"It is basic that a corporation is
invested by law with a personality separate and distinct from those of the
persons composing it as well as from that of any other legal entity to which it
may be related. Mere ownership by a single stock-holder or by another
corporation of all or nearly all of the capital stock of a corporation is not
of itself sufficient ground for disregarding the separate corporate
personality. Petitioner Sunio, therefore, should not have been made personally
answerable for the payment of private respondents' back salaries."
(Asionics Phil., et al. vs. NLRC, G.R No. 124950, May 19, 1998.)
The mere fact that the officer is part
of the family corporation does not mean that all its acts are imputed to him
directly and personally, in the absence of a showing that he acted without or
in excess of his authority or was motivated by personal ill-will against the
employee. His acts were official acts, done in his capacity as Vice President
of the company and on its behalf.
39. How do we apply and when do
we apply the doctrine of piercing the veil of corporate as regards liability
for wrongful dismissal?
Answer:
Generally, officers of a corporation are not personally liable
for their official acts unless it is shown that they have exceeded their
authority. However, the
legal fiction that a corporation has a personality separate and distinct from
stockholders and members may be disregarded. Where the incorporators and
directors belong to a single family, the corporation and its members can be
considered as one in order to avoid its being used as an instrument to commit
injustice, or to further an end subversive of justice. The shield of corporate
fiction should be pierced when it is deliberately and maliciously designed to
evade financial obligations to employees
40. Is such doctrine applicable
to sole proprietorship?
Answer: No. sole proprietorship
is difference from a corporation, wherein the corporation enjoys the doctrine
of separate Juridical Personality. The Sole proprietor personality to
the business not separate and distinct from it. Thus, he or she is directly liable
for the wrongful acts.
41. When is there solidary
liability with Corporate Officers in wrongful termination?
Answer:
There are times,
however, when solidary liabilities may be incurred but only when exceptional
circumstances warrant such as in the following cases:
1. When
directors and trustees or, in appropriate cases, the officers of a corporations:
a)
vote for or assent to patently unlawful acts
of the corporation;
b)
act in bad faith or with gross negligence in
directing the corporate affairs;
c)
are guilty of conflict of interest to the
prejudice of the corporation, its stockholders or members, and other persons;
2. When
a director or officer has consented to the issuance of watered stocks or who,
having knowledge thereof, did not forthwith file with the corporate secretary
his written objection thereto;
3. When
a director, trustee or officer has contractually agreed or stipulated to hold
himself personally and solidarily liable with the corporation; or
4. When
a director, trustee or officer is made, by specific provision of law,
personally liable for his corporate action.
42. Are indirect employers
liable for payment of backlogs and separation pay? Why or why not?
Answer:
Articles
106,107, and 109 hold an employer jointly and severally liable with its
contractor or subcontractor, as if it were the direct employer.
The liability under these articles,
however, does not extend to the payment of backwages and separation pay of
employees who were constructively or illegally dismissed by the contractor,
e.g., a security agency, where it is not shown that the principal/ indirect
employer had conspired with the contractor in effecting the illegal dismissal.
The
solidary liability for payment of backwages and separation pay is limited under
Article 106 "to the extent of the work performed under the contract";
under Article 107, to "the performance of any work, task, job or
project," and under Article 109 "to the extend of their civil
liability under this Chapter (on payment of wages.) "
43. Please summarise and
familiarised the rules in quitclaim.
What are the requisites?
Answer:
After resigning and
executing a quitclaim, may an employee still file a claim against the employer?
Generally, once an
employee resigns and executes a quitclaim in favor of the employer, he is
estopped from filing any further money claim against the employer arising from
his employment. However, when the voluntariness of the execution
of the quitclaim or release is put in issue, or when it is proved that there is
an unwritten agreement entitling the employee to other remuneration or
benefits, then such a money claim of the employee may be still given due
course.
A quitclaim, in relation
to labor law, is defined as a waiver of a claim by an employee against his
employer. An employer who may want to prevent an employee from filing future
cases for the recovery of his monetary claims would be encouraged to prepare a
quitclaim agreement in favor of the employee to prevent the latter from filing
future monetary claims. In other words, a quitclaim is executed in order to
settle once and for all the disputes arising from such employment relation and
to close the lid on an impending litigation.
Are quitclaim agreements valid? Yes, quitclaims are valid contracts under Philippine laws. The validity of quitclaims coincides with Article 1306 of the Civil Code of the Philippines which states: "The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy."
The requisites for a valid quitclaim are: 1) that there was no fraud or deceit on the part of any of the parties; 2) that the consideration for the quitclaim is credible and reasonable; and 3) that the contract is not contrary to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. (See Francisco Soriano, Jr. vs. NLRC et al., G.R. No. 165594 April 23, 2007). In other words, employees, must not have been deceived in signing, or taken advantage of their vulnerability and ignorance of the law.
A quitclaim is a valid and binding, provided that it constitutes a credible and reasonable settlement, and that the one accomplishing it has done so voluntarily and with a full and complete understanding of its import and consequences. (See Plastimer Industrial Corporation et al. vs. Natalia C. Gopo et al. G.R. No. 183390 February 16, 2011).
Usually, a quitclaim is prepared by the employer and is being utilized in instances where an employee files a labor dispute and subsequently agrees to a settlement, or when a resigning employee has been terminated from employment but given a substantial severance pay so that no future litigation can be filed by the employee for recovery of additional monetary claims.
Are there instances when a quitclaim has been declared void and ineffective? The answer is in the affirmative. According to jurisprudence, even if an employee has signed a satisfaction receipt for his claims, it does not necessarily result in a valid quitclaim. A quitclaim may not be considered as a valid agreement where a worker agrees to receive less compensation than what he is entitled to recover. It is well-settled that a deed of release or quitclaim cannot prevent an employee from demanding benefits to which he is legally entitled. The reason why quitclaims are commonly frowned upon as contrary to public policy, is that the employer and the employee do not obviously stand on the same footing, the tendency for the employer to drive the employee to the wall. (See Lourdes Marcos et al. vs. NLRC et al., G.R. No. 111744 September 8, 1995)
While rights may be waived under Article 6 of the Civil Code of the Philippines, the waiver must not be contrary to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. A quitclaim agreement is considered void where it obligates the workers concerned to forego their benefits while at the same time exempting the employer from any liability that it may choose to reject. This also runs counter to Article 22 of the Civil Code of the Philippines which provides that no one shall be unjustly enriched at the expense of another.
So how can quitclaims be validly enforced? It boils down to being transparent during negotiations. Parties must be well-informed of all the necessary data to enable each one to make a sound decision before signing a quitclaim agreement. All cards must be laid down the table with nothing to hide. This way, parties can effectively negotiate on a substantial settlement, even if it does not coincide with each other's ideal expectations.
Are quitclaim agreements valid? Yes, quitclaims are valid contracts under Philippine laws. The validity of quitclaims coincides with Article 1306 of the Civil Code of the Philippines which states: "The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy."
The requisites for a valid quitclaim are: 1) that there was no fraud or deceit on the part of any of the parties; 2) that the consideration for the quitclaim is credible and reasonable; and 3) that the contract is not contrary to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. (See Francisco Soriano, Jr. vs. NLRC et al., G.R. No. 165594 April 23, 2007). In other words, employees, must not have been deceived in signing, or taken advantage of their vulnerability and ignorance of the law.
A quitclaim is a valid and binding, provided that it constitutes a credible and reasonable settlement, and that the one accomplishing it has done so voluntarily and with a full and complete understanding of its import and consequences. (See Plastimer Industrial Corporation et al. vs. Natalia C. Gopo et al. G.R. No. 183390 February 16, 2011).
Usually, a quitclaim is prepared by the employer and is being utilized in instances where an employee files a labor dispute and subsequently agrees to a settlement, or when a resigning employee has been terminated from employment but given a substantial severance pay so that no future litigation can be filed by the employee for recovery of additional monetary claims.
Are there instances when a quitclaim has been declared void and ineffective? The answer is in the affirmative. According to jurisprudence, even if an employee has signed a satisfaction receipt for his claims, it does not necessarily result in a valid quitclaim. A quitclaim may not be considered as a valid agreement where a worker agrees to receive less compensation than what he is entitled to recover. It is well-settled that a deed of release or quitclaim cannot prevent an employee from demanding benefits to which he is legally entitled. The reason why quitclaims are commonly frowned upon as contrary to public policy, is that the employer and the employee do not obviously stand on the same footing, the tendency for the employer to drive the employee to the wall. (See Lourdes Marcos et al. vs. NLRC et al., G.R. No. 111744 September 8, 1995)
While rights may be waived under Article 6 of the Civil Code of the Philippines, the waiver must not be contrary to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. A quitclaim agreement is considered void where it obligates the workers concerned to forego their benefits while at the same time exempting the employer from any liability that it may choose to reject. This also runs counter to Article 22 of the Civil Code of the Philippines which provides that no one shall be unjustly enriched at the expense of another.
So how can quitclaims be validly enforced? It boils down to being transparent during negotiations. Parties must be well-informed of all the necessary data to enable each one to make a sound decision before signing a quitclaim agreement. All cards must be laid down the table with nothing to hide. This way, parties can effectively negotiate on a substantial settlement, even if it does not coincide with each other's ideal expectations.
Requisites of a valid quitclaim –– Jurisprudence frowns upon waivers and quitclaims forced upon employees; they are, however, not invalid in themselves; when shown to be freely executed, they validly discharge an employer from liability to an employee; in Goodrich Manufacturing Corporation v. Ativo: xxx In certain cases, however, the Court has given effect to quitclaims executed by employees if the employer is able to prove the following requisites, to wit: (1) the employee executes a deed of quitclaim voluntarily; (2) there is no fraud or deceit on the part of any of the parties; (3) the consideration of the quitclaim is credible and reasonable; and (4) the contract is not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. (Remoticado vs. Typical Construction Trading Corp., G.R. No. 206529, April 23, 2018)
Reference:
https://attorney.org.ph/legal-news/tag/19-labor-code
http://chriscaldeguer.blogspot.com/2011/03/what-is-quitclaim-in-relation-to-labor.html
http://sc.judiciary.gov.ph/case-index/2018/january-2018-june-2018/waivers-and-quitclaims/
![Reviewer for DOST-SEI Undergraduate Scholarship Examination [DOWNLOAD]](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiWZ6Vnrzdhsnvix_faSKaShGj2OxolFRfG34QthqyvaLBjMwNE39oDc_Q4wNfx0NlwlRD71_S3-_CVJStIlQ9zOzhvkCuL4GS1VVFHMe9SQ1vBRtB0NAp7boI9cCGNsT0c0ECZ6NpEVic/w100/siyensyabilidad2a.jpg)
0 Comments