Define, explain or distinguish the following terms:
(a) Just and authorized causes (2%)
(b) Seasonal and project employees (2%)
(c) Strikes and lockouts (2%)
(d) Bona fide occupational qualifications (2%)
(e) Grievance machinery (2%)
(a) It may be distinguished based on their grounds and the payment of separation pay
Just causes cover the following grounds.
Article 282. Termination by employer. An employer may terminate an employment for any of the following causes:
Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
Gross and habitual neglect by the employee of his duties;
Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and
Other causes analogous to the foregoing.
Article 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. (Labor Code)
(b) Seasonal employees are where the work to be performed is seasonal in nature and the employment is for the duration of the season. Project employees have undertakings the completion or termination of which has been determined at the time of the engagement. (Labor Code)
(c) "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. "Lockout" means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. (Labor Code)
(d) Bona fide occupational qualifications provides that employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. (Yrasuegui vs. PAL G.R. No. 168081 October 17, 2008)
(e) Grievance Machinery is responsible for the the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. (Labor Code)
X is a member of the Social Security System (SSS). In 2015, he died without any spouse or children. Prior to the semester of his death, X had paid 36 monthly contributions. His mother, M, who had previously been receiving regular support from X, filed a claim for the latter’s death benefits.
(a) Is M entitled to claim death benefits from the SSS? Explain. (2.5%)
(b) Assuming that X got married to his girlfriend a few days before his death, is M entitled to claim death benefits from the SSS? Explain. (2.5%)
(a) Yes, M is entitled as under the SSS law, dependent parents are secondary beneficiaries who may claim if there are no primary beneficiaries such as spouse or child.
The law defines (k) Beneficiaries - The dependent spouse until he or she remarries, the dependent legitimate, legitimated or legally adopted, and illegitimate children, who shall be the primary beneficiaries of the member: Provided, That the dependent illegitimate children shall be entitled to fifty percent (50%) of the share of the legitimate, legitimated or legally adopted children: Provided, further, That in the absence of the dependent legitimate, legitimated children of the member, his/her dependent illegitimate children shall be entitled to one hundred percent (100%) of the benefits. In their absence, the dependent parents who shall be the secondary beneficiaries of the member. In the absence of all the foregoing, any other person designated by the member as his/her secondary beneficiary. (SSS Law)
(b) No, M cannot claim as under the SSS Law, the spouse is a primary beneficiary who has priority over the dependent parent who is a secondary beneficiary.
A, B, and C were hired as resident-doctors by MM Medical Center, Inc. In the course of their engagement, A, B, and C maintained specific work schedules as determined by the Medical Director. The hospital also monitored their work through supervisors who gave them specific instructions on how they should perform their respective tasks, including diagnosis, treatment, and management of their patients.
One day A, B, and C approached the Medical Director and inquired about the non-payment of their employment benefits. In response, the Medical Director told them that they are not entitled to any because they are mere "independent contractors" as expressly stipulated in the contracts which they admittedly signed. As such, no employer-employee relationship exists between them and the hospital.
(a) What is the control test in determining the existence of an employer-employee? (2%)
(b) Is the Medical Director’s reliance on the contracts signed by A, B, and C to refute the existence of an employer-employee relationship correct? If not, are A, B, and C employees of MM Medical Center, Inc.? explain. (3%)
(a) The control test is applicable when the person for whom the services are performed reserves the right to control not only the end to be achieved, but also the means by which such end is reached. (Valeroso vs. Skycable G.R. No. 202015 July 13, 2016)
(b) it should be stressed that the existence of employer-employee relations could not be negated by the mere expedient of repudiating it in a contract (Century Properties vs. Babiano G.R. No. 220978 July 05, 2016) Yes, they are employees as applying the control test, MM Medical Center had control over the means by which the resident doctors employed through the specific instructions the supervisors gave on how to perform their respective tasks.
Mrs. B, the personal cook in the household of X, filed a monetary claim against her employer, X, for denying her service incentive leave pay. X argued that Mrs. B did not avail of any service incentive leave at the end of her one (1) year of service and hence, not entitled to the said monetary claim.
(a) Is the contention of X tenable? Explain. (2.5%)
(b) Assuming that Mrs. B is instead a clerk in X’s company with at least 30 regular employees, will her monetary claim prosper? Explain (2.5%)
(a) No, X's contention is not tenable as she is a personal cook for the household meaning she falls under the Kasambahay law. Under the Kasambahay law, unused service incentive leave is not convertible to cash.
Section 29. Leave Benefits. A domestic worker who has rendered at least one (1) year of service shall be entitled to an annual service incentive leave of five (5) days with pay: Provided, That any unused portion of said annual leave shall not be cumulative or carried over to the succeeding years. Unused leaves shall not be convertible to cash. (Kasambahay Law)
(b) Yes, in this case, X's case would fall under the Labor Code. Under the Labor Code, every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. (Labor Code) Such service incentive leave is convertible to cash if unused.
Ms. F, a sales assistant, is one of the eight (8) workers regularly employed by ABC Convenience Store. She was required to report on December 25 and 30.
Should ABC Convenience Store pay her holiday pay? Explain. (2.5%)
No ABC does not need to pay holiday pay as having only 8 employees, it falls within the exemption laid out under the Labor Code.Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers (Article 94, Labor Code)
D, one of the sales representatives of OP, Inc., was receiving a basic pay of ₱50,000.00 a month, plus a 1% overriding commission on his actual sales transactions. In addition, beginning three (3) months ago, or in August 2019, D was able to receive a monthly gas and transportation allowance of ₱5,000.00 despite the lack of any company policy therefor.
In November 2019, D approached his manager and asked for his gas and transportation allowance for the month. The manager declined his request, saying that the company had decided to discontinue the aforementioned allowance considering the increased costs of its overhead expenses. In response, D argued that OP, Inc.’s removal of the gas and transportation allowance amounted to a violation of the rule on non-diminution of benefits.
Is the argument of D tenable? Explain. (2.5%)
No, there is no violation of the rule on non-dimunition of benefits
There is diminution of benefits when the following requisites are present: (Vergara vs. Coca-cola Bottlers G.R. No. 176985 April 01, 2013)
(1) the grant or benefit is founded on a policy or has ripened into a practice over a long period of time
(2) the practice is consistent and deliberate
(3) the practice is not due to error in the construction or application of a doubtful or difficult question of law; and
(4) the diminution or discontinuance is done unilaterally by the employer.
In this case, the granting of the allowance was only for 3 months which is not the long period of time envisioned by law.
W Gas Corp. is engaged in the manufacture and distribution to the general public of various petroleum products. On January 1, 2010, W Gas Corp. entered into a Service Agreement with Q Manpower Co., whereby the latter undertook to provide utility workers for the maintenance of the former’s manufacturing plant. Although the workers were hired by q Manpower Co., they used the equipment owed by W gas Corp. in performing their tasks, and were likewise subject to constant checking based on W gas Corp.’s procedures.
On February 1, 2010, Mr. R, one of the utility workers, was dismissed from employment in line with the termination of the Service Agreement between W Gas Corp. and Q Manpower Co. Thus, Mr. R filed a complaint for illegal dismissal against W Gas Corp., claiming that Q Manpower Co. is only a labor-only contractor. In the course of the proceedings, W Gas Corp. presented no evidence to prove Q manpower Co.’s capitalization.
(a) Is Q Manpower Co. a labor-only contractor? Explain. (2.5%)
(b) Will Mr. R’s complaint for illegal dismissal against W Gas Corp. prosper? Explain. (2.5%)
(a) Yes, Q Manpower is a labor only contractor. There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. (Article 106, Labor Code) In this case, Q Manpower does not have substantial capital or investment required by law as the equipment that is used is owned by W Gas.
(b) Yes Mr. R's complaint shall prosper as the law considers the principal W Gas to be the real employer of Mr. R as Q manpower is a labor-only contractor. A finding that a contractor is a labor-only contractor, as opposed to permissible job contracting, is equivalent to declaring that there is an employer-employee relationship between the principal and the employees of the supposed contractor, and the labor-only contractor is considered as a mere agent of the principal, the real employer. (PNB vs. Calumpang G.R. No. 219435 January 17, 2018)
Ms. T was caught in the act of stealing the company property of her employer. When Ms. T admitted to the commission of the said act to her manager, the latter advised her to just tender her resignation; otherwise, she would face an investigation which would likely lead to the termination of her employment and the filing of criminal charges in court.
Acting on her manager’s advice, Ms. T submitted a letter of resignation. Later on, Ms. T filed a case for constructive dismissal against her employer. While Ms. T conceded that her manager spoke to her in a calm and unforceful manner, she claimed that her resignation was not completely voluntary because she was told that should she not resign, she could be terminated from work for just cause and worse criminal charges could be file against her.
(a) What is the difference between resignation and constructive dismissal? (2%)
(b) Will Ms. T’s claim for constructive dismissal prosper? Explain. (3%)
(a) To begin with, constructive dismissal is defined as quitting or cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of pay and other benefits. It exists 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. There is involuntary resignation due to the harsh, hostile, and unfavorable conditions set by the employer. The test of constructive dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his employment/position under the circumstances. (Doble vs. Abb G.R. No. 215627 June 05, 2017)
Resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself from employment. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether he or she, in fact, intended to sever his or her employment." (Doble vs. Abb G.R. No. 215627 June 05, 2017)
(b) No, it will not prosper as jurisprudence has sanctioned the offering of a graceful exit.
It is settled that there is nothing reprehensible or illegal when the employer grants the employee a chance to resign and save face rather than smear the latter's employment record, as in this case. In sum, petitioners did not constructively dismiss Siason; but rather, the latter voluntarily resigned from her job in order to avoid a full-blown administrative trial regarding her misdeeds which could potentially result in her termination for just cause. While it may be said that she did not tender her resignation wholeheartedly, circumstances of her own making did not give her any other option but to voluntarily do so. (Azucarera De Bais vs. Siason G.R. No. 215555 July 29, 2015)
In this case, she was given the chance to resign and save face after being caught stealing.
After due proceedings, the Labor Arbiter (LA) declared Mr. K to have been illegally dismissed by his former employer, AB, Inc. As a consequence, the LA directed ABC, Inc. to pay Mr. K separation pay in lieu of reinstatement as well as his full backwages.
While ABC, Inc. accepted the finding of illegal dismissal, it nevertheless filed a motion for reconsideration, claiming that the LA erred in awarding both separation pay and full backwages, and instead, should have ordered Mr. K’s reinstatement to his former position without loss of seniority rights and other privileges, but without payment of backwages. In this regard, ABC, Inc. pointed out that the LA’s ruling did not contain any finding of strained relations or that reinstatement was no longer feasible. In any case, it appears that no evidence was presented on this score.
(a) Is ABC, Inc.’s contention to delete the separation pay, and instead, order reinstatement without backwages correct? Explain. (3%)
(b) Assuming than on appeal, the National Labor Relations Commission (NLRC) upholds the decision of the LA, where, how, and within what timeframe should ABC, Inc. assail the NLRC ruling? (2%)
(a) Yes as there was illegal dismissal, there should be reinstatement but with backwages. An employee who is unjustly dismissed from work shall be 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 from him up to the time of his actual reinstatement. (Article 279, Labor Code)
(b) It should be assailed in the Court of Appeals within 60 days from denial of the motion for reconsideration through a petition for certiorari.
Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Rule 65, Rules of Court)
For purposes of prescription, within what periods from the time the cause of action accrued should the following cases be filed:
(a) Money claims arising from employer-employee relations (1%)
(b) Illegal dismissal (1%)
(c) Unfair labor practice (1%)
(d) Offenses under the Labor Code (1%)
(e) Illegal recruitment (1%)
(a) 3 years. (Article 291, Labor Code)
(b) 4 years. As discussed, the prescriptive period for filing an illegal dismissal complaint is four years from the time the cause of action accrued. (Arriola vs. Pilipino Star G.R. No. 175689 August 13, 2014)
(c) 1 year. (Article 290, Labor Code)
(d) 3 years. (Article 290, Labor Code)
(e) 12-20 years if simple, life imprisonment if with economic sabotage. (RA 10022)
Briefly discuss the powers and responsibilities of the following in the scheme of the Labor Code:
(a) Secretary of Labor (2%)
(b) Bureau of Labor Relations (2%)
(c) Voluntary Arbitrators (2%)
(a) Article 128. Visitorial and enforcement power.
The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employer?s records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto.
Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. (As amended by Republic Act No. 7730, June 2, 1994).
An order issued by the duly authorized representative of the Secretary of Labor and Employment under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from. (As amended by Republic Act No. 7730, June 2, 1994)
The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation.
The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code. (Labor Code)
(b) Article 226. Bureau of Labor Relations. The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, whether agricultural or non-agricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration.(Labor Code)
(c) Article 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. (Labor Code)
Due to serious business reverses, ABC Co. decided to terminate the services of several officers receiving "fat" compensation packages. One of these officers was Mr. X, its Vice-President for External Affairs and a member of the Board of Directors. Aggrieved, Mr. X filed a complaint for illegal dismissal before the National labor Relations Commission (NLRC) – Regional Arbitration Branch.
ABC Co. moved for the dismissal of the case on the ground of lack of jurisdiction, asserting that since Mr. X occupied the position of Vice-President for External Affairs which is listed in the by-laws of the corporation, the case should have been tiled before the Regional Trial Court.
The Labor Arbiter (LA) denied ABC Co.’s motion and proceeded to rule that Mr. X was illegally dismissed. Hence, he was reinstated in ABC Co.’s payroll pending its appeal to the NLRC.
(a) Did the LA err in denying ABC Co.’s motion to dismiss on the ground of lack of jurisdiction? Explain. (2.5%)
(b) Assuming the LA’s ruling of illegal dismissal with finality, may ABC Co. claim reimbursement for the amounts it paid to Mr. X during the time that he was on payroll reinstatement pending appeal? Explain. (2.5%)
(a) No, the LA did not err. It would only properly belong to the RTC if it was an intracorporate controversy.
To determine whether or not a case involves an intra-corporate dispute, two tests are applied - the relationship test and the nature of the controversy test.
Under the relationship test, there is an intra-corporate controversy when the conflict is (1) between the corporation, partnership, or association and the public; (2) between the corporation, partnership, or association and the State insofar as its franchise, permit, or license to operate is concerned; (3) between the corporation, partnership, or association and its stockholders, partners, members, or officers; and (4) among the stockholders, partners, or associates themselves.
On the other hand, in accordance with the nature of controversy test, an intra-corporate controversy arises when the controversy is not only rooted in the existence of an intra-corporate relationship, but also in the enforcement of the parties' correlative rights and obligations under the Corporation Code and the internal and intra-corporate regulatory rules of the corporation. (San Jose vs. Ozamiz G.R. No. 190590 July 12, 2017)
Using the relationship test, the office of Vice President for External Affairs is not a corporate officer. Likewise under the controversy test, the rights involved in an illegal dismissal case such as this involve rights under the Labor Code and not the Corporation Code.
(b) No there is no need to reimburse. 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. (Pfizer vs. Velasco G.R. No. 177467 March 09, 2011)
Mr. A signed a one (1)-year contract with XYZ Recruitment Co. for deployment as welding supervisor for DEF, Inc. located in Dubai. The employment contract, which the Philippine Overseas Employment Administration (POEA) approved, stipulated a salary of US$600.00 a month.
Mr. A had only been in his job in Dubai for six (6) months when DEF, Inc. announced that it was suffering from severe financial losses and thus intended to retrench some of its workers, among them Mr. A. DEF, Inc. hinted, however, that employees who would accept a lower salary could be retained.
Together with some other Filipino workers, Mr. A agreed to a reduced salary of US$400.00 a month and thus, continued with his employment.
(a) Was the reduction of Mr. A’s salary valid? Explain. (2.5%)
(b) Assuming that the reduction was invalid, may Mr. A hold XYZ recruitment Co. liable for underpayment of wages? Explain. (2.5%)
(a) No, the salary reduction is a violation of the law as it constitutes an illegal recruitment act which includes to substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment. (RA 10022)
(b) Yes, the recruitment agency may be held liable for money claims under the law. The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. (RA 10022)
Upon a review of the wage rate and structure pertaining to its regular rank and file employees, K Corporation found it necessary to increase its hiring rates for employees belonging to the different job classification levels to make their salary rates more competitive in the labor market.
After the implementation of the new hiring salary, Union X, the exclusive bargaining agent of the rank and file employees, demanded a similar salary adjustment for the old employees. It argued that the increase in hiring rates resulted in wage distortion since it erased the wage gap between the new and old employees. In other words, new employees would enjoy almost the same salary rates as K Corporation’s old employees.
(a) What is wage distortion? (2%)
(b) Did a wage distortion arise under the circumstances which legally obligated K Corporation to rectify the wages of its old employees? Explain. (3%)
(a) A wage distortion shall mean a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. (Article 124, Labor Code)
(b) No there was no wage distortion. Prubankers Association v. Prudential Bank and Trust Company laid down the four elements of wage distortion, to wit: (1) an existing hierarchy of positions with corresponding salary rates; (2) a significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one; (3) the elimination of the distinction between the two levels; and (4) the existence of the distortion in the same region of the country. (Philippine Geothermal Employees vs. Chevron Geothermal G.R. No. 207252 January 24, 2018) The case here does not involve an existing hierarchy of positions nor an increase in a lower pay class. It was merely an increase in pay for newer employees which does not result to wage distortiton.
On December 1, 2018, GHI Co., an organized establishment, and Union J, the exclusive bargaining agent therein executed a five (5)-year collective bargaining agreement (CBA) which, after ratification, was registered with the Bureau of Labor Relations.
(a) When can the union ask, at the earliest, for the renegotiation of all terms of the CBA, except its representation aspect? Explain. (2.5%)
(b) When is the earliest time that another union can file for a petition for certification election? Explain. (2.5%)
(a) All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. (Article 253, Labor Code)
(b) No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. (Article 253, Labor Code)
W Ship Management, Inc. hired Seafarer G as bosun in its vessel under the terms of the 2010 Philippine Overseas Employment Administration – Standard Employment Contract (POEA-SEC).
On his sixth (6th) month on board, Seafarer G fell ill while working. In particular, he complained of stomach pain, general weakness, and fresh blood in his stool. When his illness persisted, he was medically repatriated on January 15, 2018. On the same day, Seafarer G submitted himself to a post-employment medical examination, wherein he was referred for further treatment. As of September 30, 2018, Seafarer G has yet to be issued any fit-to-work certification by the company-designated physician, much less a final and definite assessment of his actual condition. Since Seafarer G still felt unwell, he sought an opinion from a doctor of his choice who later issued an independent assessment stating that he was totally and permanently disabled due to his illness sustained during work.
Seafarer G then proceeded to file a claim for total and permanent disability compensation. The company asserts that the claim should be dismissed due to prematurity since Seafarer g failed to first settle the matter through the third-doctor conflict resolution procedure as provided under the 2010 POEA-SEC.
(a) What is the third-doctor conflict resolution procedure under the 2010 POEA-SEC? Explain. (2%)
(b) Will Seafarer G’s claim for total and permanent disability benefits prosper despite his failure to first settle the matter through the third-doctor conflict resolution procedure? Explain. (3%)
(c) Assuming that Seafarer G failed to submit himself to a post-employment medical examination within three (3) working days from his return, what is the consequence thereof to his claim? Explain. (2%)
(a) If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor's decision shall be final and binding on both parties. (Philippine Hammonia vs. Dumadag G.R. No. 194362 June 26, 2013)
(b) Yes it will prosper as the company physician has yet to issue an assessment within 120 days which means it should be considered total and permanent. Due to ESPI's failure or refusal to issue a medical rating within 120 days from repatriation, in legal contemplation, Apines' disability is conclusively presumed to be total and permanent. (Apines vs. Shipmanagement G.R. No. 202114 November 09, 2016)
(c) He is no longer eligible to claim. This considering, in the event that a seafarer fails to comply with this mandatory reporting requirement, the POEA Contract provides that the seafarer shall not be qualified to receive his/her disability benefits. (Manila Shipmanagement vs. Aninang G.R. No. 217135 January 31, 2018)
Ms. A is a volleyball coach with five (5) years of experience in her field. Before the start of the volleyball season of 2015, she was hired for the sole purpose of overseeing the training and coaching of the University’s volleyball team. During her hiring, the Vice-President for Sports expressed to Ms. A the University’s expectation that she would bring the University a championship at the end of the year.
In her first volleyball season, the University placed ninth (9th) out of 10 participating teams. Soon after the end of the season, the Vice-president for Sports informed Ms. A that she was a mere probationary employee and hence, she need not come back for the next season because of the poor performance of the team.
In any case, the Vice-President for Sports claimed that Ms. A was a fixed-term employee whose contract had ended at the close of the year.
(a) Is Ms. A a probationary, fixed-term, or regular employee? Explain your reasons as to why she is or she is not such kind of an employee for each of the types of employment given, (5%)
(b) Assuming that Ms. A was dismissed by the University for serious misconduct but was never given a notice to explain, what is the consequence of a procedurally infirm dismissal from service under our labor law and jurisprudence? Explain. (2%)
(a) She is a regular employee. She may not be considered a probationary employee for the failure of the employer to communicate the standards at the time of her engagement In Abbott Laboratories v. Alcaraz, the Court stated that when dealing with a probationary employee, the employer is made to comply with two (2) requirements: first, the employer must communicate the regularization standards to the probationary employee; and second, the employer must make such communication at the time of the probationary employee's engagement. If the employer fails to comply with either, the employee is deemed as a regular and not a probationary employee. (Enchanted Kingdom vs. Verzo G.R. No. 209559 December 09, 2015) She is also not a fixed term employee as no fixed period of employment was agreed upon. It should have no application to instances where a fixed period of employment was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent, or where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. (Brent School v. Ronaldo Zamora G.R. No. L-48494 February 05, 1990)
(b) The law and jurisprudence allow the award of nominal damages in favor of an employee in a case where a valid cause for dismissal exists but the employer fails to observe due process in dismissing the employee. (Libcap Marketing vs. Baquial G.R. No. 192011 June 30, 2014)
When resolving a case of unfair labor practice (ULP) filed by a union, what should be the critical point of analysis to determine if an act constitutes ULP? (2.5%)
The test is the relation to the right to self organization.
Unfair labor practice refers to acts that violate the workers' right to organize. There should be no dispute that all the prohibited acts constituting unfair labor practice in essence relate to the workers' right to self-organization. Thus, an employer may only be held liable for unfair labor practice if it can be shown that his acts affect in whatever manner the right of his employees to self-organize. (Zambrano vs. Philippine Carpet G.R. No. 224099 June 21, 2017)
Because of dwindling sales and the consequent limitation of productions, rumors were rife that XYZ, Inc. would reduce its employee force. The next day, the employees of XYZ, Inc. received a notice that the company will have a winding down period of 10 days, after which there will be a six (6)-month suspension of operations to allow the company to address its precarious financial position.
On the fourth (4th) month of suspension of its operations XYZ, Inc. posted announcement that it will resume its operations in 60 days but at the same time announced that instead of closing down due to financial losses, it will retrench 50% of the work force.
(a) Is the announcement that there would be retrenchment affecting 50% of the work force sufficient compliance with the legal requirements for retrenchment? Explain. (2.5%)
(b) Assuming that XYZ, Inc., instead of retrenchment, extended the suspension of its operations from six (6) months to eight (8) months, would the same be legally permissible? If not, what are the consequences? (2.5%)
(a) Notably, in both a permanent and temporary lay-off, jurisprudence dictates that the one-month notice rule to both the DOLE and the employee under Article 283 of the Labor Code, as above cited, is mandatory. (Lopez vs. Irvine Construction G.R. No. 207253 August 20, 2014)
(b) It is not permissible. Within this six-month period, the employee should either be recalled or permanently retrenched. Otherwise, the employee would be deemed to have been dismissed, and the employee held liable therefor. (Lopez vs. Irvine Construction G.R. No. 207253 August 20, 2014)
Discuss the differences between compulsory and voluntary/optional retirement as well as the minimum benefits provided under the Labor Code for retiring employees of private establishments. (2.5%)
(a) Compulsory retirement is at age 65 while voluntary retirement is at the age 60 unless a different age is set in the CBA or employment contract
Article 287. Retirement. Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining agreement and other agreements: Provided, however, That an employee?s retirement benefits under any collective bargaining and other agreements shall not be less than those provided therein.
In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. (Labor Code)