ANSWERS OF A BYSTANDER TO THE 2014 BAR QUESTIONS IN LABOR LAW (With Comments) HON. BENEDICT G. KATO Labor Arbiter Law Prof., Bar Reviewer, MCLE Lecturer Author AN APPEAL TO THE EXAMINER This bystander initially answered the questions on a blue pad with his pen It took him 2 % hours to answer the 27 questions. This means that the examination was really long. For another 2 hours, or more, he reviewed and edited his raw answers for online sharing. Regardless, he is not totally sure if he has correctly answered all. Therefore, he appeals to the examiner to be liberal Alter all, his questions are really for higher forms of life. He did a great job,Linda was employed by Sectarian University (SU) to cook for the members of a religious ‘order who teach and live inside the campus. While performing her assigned task, Linda accidentally burned herself. Because of the extent of her injuries, she went on medical leave. Meanwhile, SU engaged a replacement cook. Linda filed a complaint for illegal dismissal, but her employer SU contended that Linda was not a regular employee but a domestic househelp. Decide. (4%) ANSWER by Hon. Benedict G. Kato: Linda is a regular employee. ‘SU's contention that Linda is a domestic helper is without basis because the latter did not minister to the personal comfort of the members of any household. Although a cook, hence listed, she cannot be classified as a Kasambahay because she rendered services for resident religious teachers in a university which was not a household.Lucy was one of approximately 500 call center agents at Hamborgis, Inc. She was hired as a contractual employee four years ago. Her contracts would be for a duration of five (6) months at a time, usually after a one- month interval. Her re-hiring was contingent on her performance for the immediately preceding contract. Six (6) months after the expiration of her last contract, Lucy went to Hambergis personnel department to inquire why she was not yet being recalled to work. She was told that her performance during her last contract was “below average.” Lucy seeks your legal advice about her chances of getting her job back What wll your advice be? (4%) ANSWER by Hon, Benedict G. Kato: | will advise Lucy to file a complaint for constructive dismissal, with prayer for reinstatement, because her floating status has exceeded six (6) months. By virtue of the nature of her job, Lucy attained tenure on the first day of her ‘employment. As a regular employee, therefore, she could only be dismissed for a just or authorized cause. Expiration of her last contract was neither a just nor authorized cause. Hence, she was illegally dismissed. Moreover, her term employment contracts were contracts of adhesion; hence, they should be taken against Hambergis Inc, because of its obvious intent to use periods to bar her regularization.W Lolong Law Firm (LLF), which employs around 50 lawyers and 100 regular staff, suffered losses for the fist time in its history. The management informed its employees that it could no longer afford to provide them free lunch. Consequently, it announced that a nominal fee would henceforth be charged. Was LLF justified in withdrawing this benefit which it had unilaterally been providing to its employees? (1%) (A) Yes, because its suffering losses forthe fist time (B) Yes, because this is a management prerogative which is not due to any legal or contractual obligation. (©) No, because this amounts to a diminution of benefits which is prohibited by the Labor Code. (0) No, because its a fringe benefit that has already ripened into a demandable right. ANSWER by Hon. Benedict G. Kato: (0) "No, because it is a fringe benefit that has already ripened into a demandable right.” Note: Not (A) because the losses do not appear to be substantial losses, Not (B) because management prerogative cannot be the source of a unilateral benefit at ‘one point and the very justification for its taking away at another. Not (C) because Article 100 of the Labor Code applies only to benefits enjoyed before or at the time ofthe effectivity of the Code (Waterfront ruling, 22 Sept. 2010, J Peralta).v Linis Manpower, Inc, (LMI) had provided janitorial services to tho Philippine Ovorseas Employment Administration (POEA) since March 2009. Its service contract was renewed every three months. However, in the bidding held in June 2012, LMI was disqualified and excluded. In 2013, six janitors of LMI formerly assigned at POEA filed a complaint for underpayment of wages. Both LMI and POEA were impleaded as respondents. Should POEA, a goverment ‘agency subject to budgetary appropriations from Congress, be held liable solidarily with LMI for the payment of salary differentials due the complainant? Cite the legal basis of your answer. (4%) ANSWER by Hon. Benedict G. Kato: Yes. ‘The POEA, although a government agency, is a statutory employer by operation of Article 106 of the Labor Code, as implemented by D.O. 18-A. As such, it can be held solidatily liable for salary differentials resulting from its job contractor's underpayment of salaries due its workers (Meralco Industrial Eng’g ruling, 14 March 2008). Comment: Relative to the trilateral relationship between a principal (P), contractor (C) and worker (W), we hardly read that P may be any person ~ private or public. The Bar question tells us that P may be the POEA, SSS, GSIS or ADB. Article 108, LC, makes no distinction; hence, any person can be a statutoty employer. Indeed, only principals of service providers in IT-assistod ‘outsourcing, PCAB-ragistered contractors, and canteen concessionaites are beyond the reach of D.0. 18Av Livaywny Glass had 600 rankeandefle employees. Three rival unions ~ A, B, and C participated Inthe corticaton elections ordered by the Mes-Aroter. 500 employees voted. The Unions obtained the folowing votes: A-200, 8-150, C-50, 80 employees voted "no union’ ard 10 wore segregated votes. Out of the segregated votes, four (2) wore cast by probatcnary ‘omployeos and six (8) wore east by dismisted omployoes whoce respoctive cases aro stil on ‘ppeat (10%) (A) Should the votes of the probationary and dismissed employees be counted in the total votes cast forthe purpose of determining the wnnng labor Union? (©) Wios there a vale election? (©) Should Union Abe declared the winner? (©) Suppose the olection is declared invalid, wich of the contending unions should represent the ranicand:fle employees? (©) Sucpose that in the elation, the anions obtained the folowing votes: A-250; 8-150, (©-50: 40 voted no union”: and 10 were segregated votes. Should Union Abe certied as the Bargaining representative? ANSWERS by Hon, Benedict G, Kato: (A). _Yes. The segregated votes should be counted as vali votes. Probationary ‘employees are not among the employees who are ineligible to vote. Likewise, the Pendency of the appeal of the ak diemissed employees indicates that they nave ‘contested their dismissal before a forum of appropriate jurisdiction; hence, they continue {o.be employees for purposes of voting in a certification election (0.0. 40-02). (B). Ves. The certification election is valid because it is not a barred election and majority ofthe eligibe voters cast their votes. (©). No. Union A should not be declated the winner because it failed to garner majority of the valid votes. The majority of 800 votes, representing valid votes, 1s 251 Yotes. Since Union A received 200 votes only, it didnot wan the election. (©) _None of the participating unions can represent the rank-and-file employees for purposes of collective bargaining because none of them enjoys majerity representative status. (©) Ifthe 10 votes were segregated on the same grounds, Union A cannot stil, be certified as the bargaining representative because its vote of 260 is sill short of the imojority vote of 254. However, ifthe 10 votes were Yalicly segregated. majorty vote ‘would be 248 votes. Since Union A recelved more than majority vote then it won the ‘lectionvl Lina has been working as 2 steward with a Miami, U.S.A-based Loyal Cruise Lines for the past 15 years, She was recruited by a local manning agency, Macapagal Shipping, and was made to sign a 10-month employment contract everytime she left for Miami, Macapagal Shipping paid for Lina’s round-trip travel expenses from Manila to Miami, Because of a food poisoning incident which happened during her last cruise assignment, Lina was net re-hired, Lina claims she has beon illegally torminatod and sooks separation pay. If you wore tho Labor Arbiter handling the case, how would you decide? (4%) ANSWER by Hon. Benedict G. Kato: | will dismiss the complaint for illegal dismissal. Lina is a seafarer. As such, she is a contractual employee who cannot require her employer to enter into another contract of employment with her under the Principle of Freedom of Contracts. In effect, Lina cannot be awarded separation pay. As an alternative relief, separation pay is proper only when there is a finding of illegal dismissal.vil Non-lawyors can appear bofore the Labor Arbitor if: (1%) () they represent themselves, (B) they are properly authorized to represent their legitimate labor organization of member thereof (©) they are duly-aceredited members of the legal aid office recognized by the DOJ or IeP (©) they appear in cases involving an amount of less than Php5,000 ANSWER by Hon. Benedict G. Kato: (A). “They represent themselves.” Note: Not (B) because it restricts the term “organizations” to legitimate labor organizations. Not (C) because the DOU is not an accrediting agency Not (D) because the “not exceeding PhS,000" isa jurisdictional rule, not a rule on taw practicevu ‘As a result of a bargaining deadlock between Lazo Corporation and Lazo Employees Union, the latter staged a strike. During the strike, several employees committed illegal acts. Eventually, its members informed the company of their intention to return to work. (6%) (A) Can Lazo Corporation refuse to admit the strikers? (®) Assuming the company admis the strikers, can it later on dismiss those omployeos: who committed illegal acts? (©) I due to prolonged strike, Lazo Corporation hired replacements, can it refuse to admit the replaced strikers? Hon, Benedict G. Ki (A) _ No. A strike is a temporary stoppage of work only. Therefore, strikers can go back to their work in the event of a voluntary abandonment of their strike. (B) After admission, the company can hold the strikers behind the illegalities accountable for their acts. if found to have committed acts justifying a dismissal, said employees can be terminated after due process. (©) __ No. The positions left behind by strikers are deemed legally unoccupied. Moreover, the hiring of replacement workers does not terminate employer-employee relationship because a strike is a temporary stoppage of work only. Finally, replacement workers are deemed to have accepted their engagement subject to the outcome of the strike.1x Luisa Court is a popular chain of motels. it employs over 30 chambermaids who, among others, help clean and maintain the rooms. These chambermaids are part of the union rank- and-file employees which has an existing collective bargaining agreement (CBA) with the ‘company. While the CBA was in force, Luisa Court decided to abolish the position of chambermaids and outsource the cleaning of the rooms to Malinis Janitorial Services, a bona fide independent contractor which has invested in substantial equipment and sufficient manpower. The chambermaids filed a case of illegal dismissal against Luisa Court. In response, the company argued that the decision to outsource resulted from the new management's directive to streamine operations and save on costs. if you were the Labor Arbiter assigned to the case, how would you decide? (4%) ANSWER by Hon. Benedict G. Kat. I would declare the chambermaids to have been illegally dismissed. ‘The chambermaids are regular employees for performing work necessary or desirable to the main trade of the Luisa Court. As such, they enjoy security of tenure. The job contracting arrangement between Luisa Court and Malinis Janitorial Services is prohibited by D.O. 18-A because it has the effect of introducing workers to displace Luisa Court's regular workers.x Luisa was hired as a secretary by the Asian Development Bank (ADB) in Manila. Luisa’s first boss was @ Japanese national whom she got along with. But after two years, the latter was replaced by an arrogant Indian national who did not believe her work output was in accordance with international standards. One day, Luisa submitted a draft report filled with typographical errors to her boss. The latter scolded her, but Luisa verbally fought back. The Indian boss decided to terminate her services right then and there. Luisa filed a case for illegal dismissal with the Labor Arbiter claiming arbitrariness and denial of due process. If you were the Labor Arbiter, how would you decide the case? (4%) ANSWER by Hon. Benedict G. Kato: ismiss the complaint for illegal dismissal. Luisa committed serious misconduct. Her Indian boss, regardless of his arrogant nature, had the clear right to reprimand her for her poor performance. Absent justification for verbally fighting back, Luisa’s act amounted to serious misconduct. Therefore, her dismissal was valid. However, she was not accorded statutory due process. For this reason, | will award her nominal damages of Ph30,000.XI ional, an Amorican citizen whose paronts migrated to the U.S. from tho Philippines, was hired by JP Morgan in Now York as a call center specialist. Hearing about the phenomenal growth of the call center industry in his parents’ native land, Lionel sought and was granted a transfer as a call center manager for JP Morgan's operations in Taguig City. Lionel's, ‘employment contract did not specify a period for his stay in the Philippines. Alter three years of ‘working in the Philippines, Lionel was advised that he was being recalled to New York and boing promoted to the position of director of international call center operations. Howover, because of certain “family reasons,” Lionel advised the company of his preference to stay in the Philippines. He was dismissed by the company. Lione| now seeks your legal advice on: (6%) (A) whether he has a cause of action (©) whether he can file a case in the Philippines (©) what are his chances of winning ANSWER by Hon. Benedict G. Kato: (A) Lionel has a cause of action. He has a right to be secure in his job; his ‘employer has the correlative obligation to respect that right; his dismissal constitutes a violation of his tenurial right; and said violation caused him legal injury. (8) Lionel can file an illegal dismissal case in the Philippines. Being a resident corporation, JP Morgan is subject to Philippine Labor Laws. And, although hired abroad, Lione'’s place of work is Taguig. Hence, he can lodge his complaint with the NLRC-NCR which has territorial jurisdiction over his workplace (Sec. 4, Rule IV, NLRC Rules of Procedure, as amended), (©) _ Lionel has reasonable chances of winning. His recall to the USA was not a lawful lateral transfer that he could not refuse. On the contrary, it was a scalar transfer amounting to @ promotion which he could validly refuse. Absent willful disobedience, therefore, his termination is groundless.xl Which of the following groups does not enjoy the right to selt- organization? (1%) (A) those who work ina non-profit charitable institution (©) those who are paid ona piece-rate basis, (C) those who work in.a corporation with less than 10 employees (0) those who work as legal secretaries ANSWER by Hon, Benedict G. Kato: (0). “Those who work as legal secretaries”. Legal secretaries are confidential ‘employees. Note: Not (A) because, under Article 243 of the Labor Code, employees of charitable, Feligious, educational and medical institutions are covered employees. Not (B) because piece-raters do not suffer any disqualification Not (C) because the “less than 10 rule” in the Labor Code affects right to labor standards bonefits, in particular holiday pay and service incentive leavo (Articles 84 and 95), not right to sself-organization,xl Don Luis, a vidower, lived alone in @ house with a large garden, One day, he noticed that the plants in his garden needed trimming. He remembered that Lando, a 17-year old out-of- ‘school youth, had contacted him in church the other day looking for work. He contacted Lando ‘who immediately attended to Don Luis's garden and finished the job in three days. (4%) (A) Is there an employer-employee relationship between Don Luis and Lando? (B) Does Don Luis need to register Lando with the Social Security System (SSS)? ANSWER by Hon. Benedict G. Kato: (A) _ There is employer-employee relationship between Don Luis and Lando. Firstly, Lando who was looking for work finally rendered personal services for Don Luis. Secondly, Lando could not have been the master of his time, means and methods under the circumstances (Sec. 8, RA 8282), (®) Don Luis does not need to register Lando with the SSS because he is a purely casual employee, hence outside SSS coverage (RA 8282). Neither should he feport Lando for SSS coverage under the Kasambahay Act because, although a gardener, he is an occasional if not sporadic employee. Therefore, he is not a kasambahay who is entitled to SSS coverage (RA 10361). Comment: ‘The question is tricky. The examiner wants to lead the examinees into considering Lando as a kasambahay because he is listed ( gardener), and giving him SSS coverage pursuant to RA 10361. However, Lando is an occasional or sporadic gardener; hence, he is not a kasarnbahay,